Reviewer’s verdict: no free speech crisis on Australian campuses

But union says codifying free speech principles would backfire

March 25, 2019
Kids shout through megaphones at the Opera House during the Sydney Festival. Australia
Source: Getty

Claims of a free speech crisis at Australian universities are set to be rejected by the eminent judge charged with reviewing open expression on the nation’s campuses, Times Higher Education can reveal.

The government-appointed reviewer, former High Court chief justice Robert French, is instead expected to conclude that a hotchpotch of policies and principles around academic freedom is fuelling perceptions that free speech is under threat.

Mr French is not expected to support any wide-scale attempt to regulate free speech or wind back institutional autonomy, and instead appears likely to recommend only minor tweaks to legislation and regulations, such as inserting a definition of academic freedom in the Higher Education Support Act.

And, as he flagged when he accepted the appointment last November, Mr French is developing a “model code” to help guide universities’ rules on free expression.

THE understands that a draft of the code was circulated among universities and academic representative bodies in February, with feedback due by early March. While THE has not seen the draft, the response to it from the National Tertiary Education Union – which has been posted online – offers clues to its contents.

In the response, union president Alison Barnes questions the advisability of a model code.

“While we accept that it is not your intention to create a statutory foundation for a more intrusive regulatory environment, we are concerned that others may not share your view,” she says. “If and when such a code is published, the temptation will be to mandate it either in legislation or in standards.”

The submission warns that a code could perpetuate the “confusion and misinterpretation” of current university policies. It cites a clause in the draft code that would allow universities to bar external speakers whose ideas “do not meet scholarly standards to such an extent as to be detrimental to the university’s character”.

Such a principle would inevitably encourage accusations that speakers were being excluded on the grounds of “ideological bias”, the submission argues. “Any attempt to codify a set of principles…will soon be used and interpreted as rules and challenged either administratively or legally,” Dr Barnes says.

The union instead advocates “a minimalist approach”, saying that codifying an “enigmatic” concept such as academic freedom would constrain its application. “The unintended consequence…will be to limit rather than liberate academic freedom and free speech,” the submission says.

The submission blames the mishmash of university policies partly on a tendency to treat free speech and academic freedom, two distinct concepts, as one and the same. It says that the NTEU is partly responsible for this because its lobbying to enshrine academic freedom in legislation led to the adoption of the “compromise” term of “free intellectual inquiry”.

This term “unnecessarily conflates academic freedom and free speech, which is unhelpful in the current debates”, the union says.

Mr French declined a request for interview. The Education Department said that any decision to publicly release his report or submissions to his review would be “a matter for government”.

Universities had questioned the need for the review, pointing out that they had issued a collective statement reaffirming their commitment to free expression the week before Mr French was appointed by education minister Dan Tehan.

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