Chapter 4
A charter of academic freedom
4.1
Terms of reference (c) direct the committee to identify ways in which
intellectual diversity and contestability of ideas may be promoted and
protected, including the concept of a charter of academic freedoms. A number of
submissions addressed the broad aspects of this question without regard for the
specific, and rarely discussed, issue of student rights. In this chapter the
committee considers the question of whether there is any need to protect
diversity and the free exchange of ideas in universities and whether this is
the responsibility of governments and lawmakers.
Threats to academic freedom
4.2
Many submissions, from across the spectrum of political viewpoints,
agreed that there were current threats to academic freedom.
4.3
Some described the threats they perceived to freedom of teaching and
research, with reference to the intrusions of the state as well as the
intrusions of commercial interests into the affairs of universities. Commercial
and national security pressures are making academic life more difficult.
Liberal Students groups made no reference to this, arguing that the threat to
academic freedom was from within the university: the consequence of a leftist
dominance of teaching and research which restricted the scope of ideas.
4.4
In a recent publication, Edwina MacDonald and Professor George Williams
identify three sources of threat to academic freedom.[1]
The first is the increasing commercialisation of research, the second being the
difficulty in obtaining research funding, and the third being the effects of
counter-terrorism legislation on the freedom to research in areas related to
this problem.
4.5
While MacDonald and Williams acknowledge the obvious benefits of private
investment in university research they point out that the pressure on academics
to generate funding can encourage them to channel their research into safe
areas which are likely to attract funding, and away more controversial areas of
research. They also point out that the free expression of ideas and the
commercial need to protect profits do not always sit well together. Publication
of research results may be discouraged because of the need to safeguard their
own, and their sponsors' property rights. In a survey of researchers in the
social sciences undertaken in 2001, 17 per cent indicated that they had been
prevented from publishing contentious results as a result of commercialisation.[2]
4.6
As to the issue of research funding, MacDonald and Williams have much to
say about its administration before the change of government toward the end of
2007. The much-criticised amendments made in 2005 to the Australian Research
Council Act, which granted ministerial veto rights over grants already approved
by the ARC appear to be no longer 'operable'. The submission from the
Australian Academy of Science welcomed current Minister Kim Carr's initiation
of dialogue with the scientific community to discuss rights and
responsibilities for scientists in public research agencies.[3]
Nonetheless, until there is a significant increase in research grant funds
through the ARC concerns about over-reliance on private funding will continue.
4.7
MacDonald and Williams point out that the large number of new laws made
over recent years for the purpose of resisting or deterring terrorist attacks
have had a profound effect on a range of human rights. In 2005 Parliament
enacted new sedition laws. In theory, these could be applied in cases where
academics, or anyone else, urge actions which might threaten 'the peace and
good government of the Commonwealth'. In addition, anti-terrorism laws have
also resulted in the censorship or banning of publications relating to
terrorism.[4]
4.8
The submission from the National Tertiary Education Union also
identified anti-terror laws as a matter of concern for universities. It
submitted:
We have already seen examples of the effect of these laws – a
student at Monash University was interviewed by the Federal Police on the basis
that he purchased and borrowed books on suicide bombing for his course of study
on suicide bombings. Censorship of books and research projects by the
Attorney-General on the basis of possible conflict with the 2005 Anti-Terrorism
Act has also taken place. The former occurred at the University of Melbourne
with the university being advised to remove books from its library under fear
of committing an offence. The latter being a cutting back of the research field
of an individual researcher who had been granted an ARC peer reviewed grant on
the basis that such research may contravene the 2005 Anti-Terror Bill. Finally
the Export Control Bill may place further restrictions on research, conferences
and publications undertaken in areas that relate to weapons of mass
destruction.[5]
In support of a charter of rights
4.9
There is a substantial amount of published research and commentary on
the need for statutory protection of academic freedom, all of it relating to
those issues of academic freedom familiar to most scholars and commentators.
There has been some support expressed for the idea of statutory defence of
academic freedom from mainstream academics and interest groups concerned about
some of the trends described in the previous section.
4.10
The terms of reference for this inquiry, however, do not strictly
address these mainstream issues. They assume that the university is threatened
by unbalanced and unscholarly teaching, and the prevalence of a university
culture which is oriented toward intellectually vapid or destructive minority
causes. Those concerned about these trends also favour a charter of academic
freedom, although it arises from radically different beliefs and is intended to
serve quite different ends, despite the language in which it is couched. The
committee deals with this first.
The Horowitz inspiration
4.11
Information in a number of submissions indicates that the idea of a
charter of rights intended specifically to ensure 'balance' in the content and
teaching of humanities and social sciences courses emanates from the United
States, and is the brainchild of a well-known (and one-time left) academic
David Horowitz. In 2001 Horowitz founded Students for Academic Freedom, and
soon after proposed an academic bill of rights.
4.12
The American connection should be noted. Far more Americans than
Australian are willing to be affiliated with or identified with a political
party. It has been estimated that over 70 per cent of American academics
identify themselves as Democrats or Democrat supporters. Republicans believe
that universities are controlled by Democrat coteries, and that the course
content, and the stance of academic staff serves to further the influence of
what they deride as liberalism. That is, views other than liberal views are
squeezed out of the curriculum, and knowledge is processed through the prism of
liberalism. Horowitz and his Students for Democratic Freedom aim to reverse
this through the implementation of an academic bill of rights. The American
proposal has been put into the form of legislation which has been introduced in
the House of Representatives and to several state legislatures.
4.13
That is the inspiration for the Liberal Students' proposal. As the
committee was told:
The Australian Liberal Students Federation would like to see
universities across the nation adopt a charter of academic rights which would
protect diversity of thought and students’ entitlement to freedom of inquiry.
Such a charter would provide for new standards of curricula that would include
alternative and disseminative sources in course materials and quality control
mechanisms to ensure an adequate spectrum views on subject matter taught. There
would be guarantees that academics are hired on the basis of merit, with no
consideration of their political affiliation, and research funding would be
allocated on the condition that they foster pluralist perspectives on issues of
importance. Most importantly, such a charter would ensure blind and double
marking for student assessments and make sure that the students’ work is judged
by the fairest possible standard. We believe that such a charter would be the
best means to hold academics to account and to make the quality of our
universities' content, teaching and assessment content as good as it can and
must be.[6]
4.14
The debate over the proposed American legislation and how it would
operate has not been researched by the committee. On the face of it the
intention of the legislation appears benign and expressed in such liberal terms
as to provoke surprise that it would be needed in a country with the democratic
traditions of the United States. It appears at one level to provide for what
already exists. Even if Horowitz's bleak view of a takeover of American
campuses by subversive left-wing elements could be shown to be valid, it is
difficult to see how a charter of academic freedom would serve to reverse this
trend. Its application to Australia cannot be imagined.
4.15
In this regard the committee notes a submission which proposes what its
author admits are draconian rules to eliminate academic bias from university
teaching, and from university culture generally. The submission proposes (with
commentary attached):
The drafting and enforcement of an Academic and Students'
Bill of Rights which would defend academic and campus pluralism by
preventing instances of unjustified discrimination. This would be achieved by
(i) preventing 'trendy' mono-cultural paradigms from dominating academic
discourse, and (ii) secure true diversity of thought among the student
population.
This scheme would necessarily require a procedure whereby rights
are guaranteed by penalising breaches thereof. Where as it is always tempting
to codify rights and liabilities in times of uncertainty, this approach could
nevertheless pose further procedural difficulties and rigidify the process
through which student and academic liberties are guarded and enforced.
Moreover, it might be counterproductive where it is argued that the said rights
are limited to those enumerated in the code.
The prohibition of any and all political expression by academic
staff on campus, included but not limited to, the display of posters, badges,
stickers and other like paraphernalia, the prohibition of politically motivated
or politically coloured remarks during periods committed to the holding of
lectures, tutorials, seminars, student-teacher conferences and the like;
subject to the following exceptions (i) where the remarks and paraphernalia is
occasioned in private company, and (ii) where the occasion of political
commentary and display of said paraphernalia is relevant to the substance of a
lecture, tutorial, seminar, student-teacher conference or the like.[7]
4.16
Whether or not this viewpoint is presented as a parody of a vision by
Horowitz disciples, it does show that the cure which is proposed by some
neo-conservatives fearful of a 'leftist stranglehold' on universities is likely
to be far worse than the disease.
Mainstream support for statutory
academic freedom
4.17
MacDonald and Williams also favour statutory protection of academic
freedom. They argue that:
Experience elsewhere shows that a Charter would give real
protection to human rights like freedom of speech and could have a powerful
impact in shaping public debate. While no such law provides the whole answer,
and is not a substitute for ongoing political or industrial action, it would be
a valuable tool in preventing the further erosion of academic freedom in
Australia.[8]
4.18
The National Tertiary Education Union (NTEU) also advocates legislative
protection for academic freedom. It cites threats to academic freedom arising
from the enactment of anti-terrorism laws and new sedition provisions which
restrict the rights of researchers and lay them open to criminal offences. It
points out that the traditional protections afforded to academics through
collective agreements and university codes of practice are no longer
sufficient.[9]
4.19
Dr Ben Saul, from the Faculty of Law at Sydney University supports these
views, recommending that legislation to protect academic freedom be based on
the protection contained in the Education Act 1989 (New Zealand).[10]
The New Zealand legislation has been mentioned in a number of submissions.
Section 161 of the New Zealand Education Act 1989 provides protection
for academic freedom in regard to the freedom of academic staff and students,
within the law, to question and test received wisdom, to put forward new ideas
and to state controversial or unpopular opinions; freedom of academic staff and
students to engage in research; freedom of the institution and its staff to
regulate the subject-matter of courses taught at the institution, and the
freedom of the institution and its staff to teach and assess students in the
manner they consider best promotes learning. In addition, the Act acknowledges
the freedom of the institution through its chief executive to appoint its own
staff.
4.20
The committee notes that the intention of the Act is to protect both
students and teaching staff. Beyond expressing the view that the provisions
appear sensible and reasonable, the committee makes no comment on whether
similar legislation would be necessary and appropriate in Australia,
particularly in the light of the apparent effectiveness of non-legislative
protections instituted by universities.
Opposition to a statutory protection of academic freedom
4.21
The committee notes that opposition to the principle of statutory
protection of academic freedom comes from a cross-section of academic opinion.
Of particular note is the inclusion on this side of the argument of the
Australian Liberal Students' Federation. It appeared to the committee that the
prevailing view favours the status quo. Universities Australia and a number of
individual academics expressed the view that universities were in no need of
further regulation. Despite the vagaries of common law in regard to academic
freedom, it was believed by some submitters that there was already sufficient
protection for academic freedom contained in the various protocols instituted
by universities.
4.22
In the view of the Australian Political Studies Association (APSA),
universities already have systems to promote and protect academic freedom.
These are contained in codes of conduct, strategic plans and in enterprise
agreements. The committee cites an example in the University of Queensland’s Code
of Conduct which outlines its commitment to protecting and fostering
academic freedom, as expressed in the Collective Agreement, through listing the
conduct expected of the university and its staff:
2.3 The University community is complex, with a large and
diverse population of staff and students. As an organisation, it plays an
important role in society generally (by the provision of teaching, research and
community service) and it receives a significant proportion of its funding from
public moneys. The primary role of the University in advancing knowledge
requires that it safeguards its institutional autonomy and protects academic
freedom. In advancing knowledge, research ethos encourages independence and
innovation in ideas and methods. The University values a collegiate environment
as the best means of fostering the advancement of knowledge.
2.7 Traditionally, universities are places where academic
and research staff have been encouraged to observe and to comment upon or
criticise society and its activities. Universities also encourage the
development of new concepts through research and open discussion. The
exploration of unconventional views is not merely tolerated but encouraged. The
Code of Conduct is not intended to derogate from this traditional and
independent right to comment on matters of public concern or to pursue research
on matters of public controversy. Administrative and support staff, in
facilitating academic and research endeavours, should also seek to protect the
appropriate exercise of academic freedom within the scope of their duties.
3.2.1 The obligation (to observe the laws of the State and
Commonwealth and to comply with the statutes and rules of the university) is
not intended to detract from the concept and practice of academic freedom,
which is regarded by the University as fundamental to the proper conduct of
teaching, research and scholarship. Academic and research staff should be
guided by a commitment to freedom of inquiry. This commitment is expressed in
their teaching and research and in their role in advancing the intellectual
heritage of their society. Academic and research staff should exercise their traditional
rights to examine social values and to criticise and challenge the belief
structures of society in the spirit of a responsible and honest search for
knowledge and its dissemination. For example, academic freedom entitles an
academic or research staff member to challenge and criticise ideas and methods
but not to defame others.[11]
4.23
APSA describes arguments in favour of a separate charter of academic
freedom, as 'well-meaning and seductive'. It is wary of any initiative that may
play into the hands of proponents of an academic bill of rights similar to that
proposed in the United States which is intended to facilitate university hiring
policies that would promote a 'plurality of perspectives' in regard to the
ideology of appointees. APSA warns against establishing any charter of academic
freedom which would require universities to recruit staff on any basis other
than merit.[12]
4.24
Professor Sinclair Davidson from RMIT, also representing the Institute
of Public Affairs, told the committee that he doubted whether statutory
underpinning of academic freedom would add any value to what now prevails.
4.25
Professor Brian Galligan, was asked his views on the desirability of
legislation, and responded:
Usually for these sorts of things, as with a bill of rights and
legislating in that way, there are usually arguments that you can run on both
sides of the question. I tend to be in favour of strong professionalism and
tradition, if that is adequate, but then there comes a point perhaps when there
are so many other intruding and often unintended consequences of things that
are happening that that may not be enough. My own view is that just legislating
for something resolves nothing at all; it is really the nurturing of that sort
of strong professional culture and an honouring of certain principles in the
way institutions conduct their business and so on which can be easily eroded by
a lot of things, even unintended things. In the first instance I would want to
be shown that there was a real need for legislating; secondly, that it would
make some material difference as opposed to the alternative of, in a sense,
smartening up or trying to refurbish the traditions and practices we have in
place. On the face of the thing, I would say no; let us see if we can repair or
refurbish what we have.[13]
4.26
In relation to this viewpoint, the committee notes that universities
have developed charters of academic freedom which have more substantial
recognition as a result of the establishment of the Australian Universities
Quality Agency. The committee assumes that if academic freedom is in need of
further strengthening, the necessary repairs and refurbishing, to use Professor
Galligan's words, can begin with AUQA.
4.27
The prospect of charter of rights style legislation causes concern in
parts of academe which would appear to be at a safe distance from conflict and
controversy, and where academic staff and students have not been known for
their expressions of turbulent dissent uncomfortable views. The committee
received submissions from divinity schools affiliated with universities
pointing out particular problems that would arise for them. As noted in Chapter
2, clashes of views over religious belief and its relationship to secular
affairs and belief are not unknown in universities in the 21st
century.
4.28
A theologian from the Australian Catholic University, Professor Neil Ormerod
has raised the issue of how one person's faith commitment may be another
person's 'ideological, political and cultural prejudice'. He points out that
theological institutes often require a commitment to faith of the kind that
some people would regard as erroneous or meaningless, and posed the question of
how scientists would view the axiom of St Augustine: 'Unless you believe, you
will not understand'. Professor Ormerod continued:
Again, similar concerns could be raised about the needs for
courses “to reflect a plurality of views, be accurate, fair, balanced and in
context”. Would, for example, a charter of academic freedoms require a
Christian theological college to present Hindu, Buddhist, Islamic and Jews
faith positions in the name of pluralism and balance? Certainly, many
theological courses will have units on inter-religious matters and one would
expect the presentation of other faith positions to be accurate and fair. But
if every course was expected to present the full plurality of inter-religious
views on every faith issue held by Christians, it would swamp the curriculum.
Even within Christianity, would one require a Pentecostal college to include
detailed material on Greek Orthodoxy, and vice verse? Academic freedom does not
require such false attempts at “balance”.[14]
4.29
Finally, the view of the Australian Liberal Students' Federation is
notable for its opposition to any statutory protection of academic freedom. The
Federation is as vehement as other Liberal Student organisations in its
opposition to what it sees as ideological prejudice evident across the higher
education sector, but states that the remedy for this lies in the hands of
universities to ensure that academic freedoms are strengthened.
...it is the Federation’s view ... that the proposed legislative
entrenchment of these freedoms is not the method in which such a charter should
be implemented. Formal legislation to combat problems of prejudice in tertiary
education may not be suited to the differing requirements of each university’s
location and circumstance. Furthermore, the Federation is averse to promoting
ideals of freedom through methods of compulsion and respects the autonomous
structures and operations of Australian universities. Hence, the ALSF purports
that individual policies of academic freedom should be adopted at these
institutions to promote academic efficacy with assistance from the government.
In what is now a very competitive higher education market, the Federation
contends that it will be in the best interests of universities to act on their
own volition in adopting charters of academic rights in attracting potential
students. Incorporating a charter of academic rights into university policies
can only be a positive for tertiary institutions competing with their
competitors for Australia’s best and brightest school graduates.[15]
Conclusion
4.30
The committee has reached no considered view on whether there should be
statutory protection of academic freedom. It has had limited opportunity it had
to consider the evidence in detail. The issue would require its own inquiry,
rather than as a subsidiary part of an inquiry about quite a different matter.
The committee was without the benefit of specific advice from vice-chancellors,
and could not even begin to consider which jurisdiction would be vested with
legislative responsibility. The issue would need to be looked at as part of the
governance framework for universities and would require the full attention of
university councils and vice-chancellors, as well as academic specialists. In
short, this is a matter for universities to consider in their own time and to
make recommendations to government if they consider that course of action
necessary.
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