Academic freedom and (free?) speech

Paul Kniest, NTEU Director (Policy & Research) Kelly Thomas, NTEU Senior Legal Officer

After two reviews into academic freedom, the Government is seeking to change its definition in law. Yet NTEU believes that the only way to guarantee individual rights is through strong clauses within Enterprise Agreements.

French Review

In November 2018, the then Minister for Education, Dan Tehan, announced that the Hon Robert French, former Chief Justice of the High Court, would undertake an independent review into freedom of speech in higher education.

While Justice French’s very comprehensive review published in March 2019 concluded that there was no crisis in free speech at Australian universities, he did nonetheless make a number of important recommendations including some changes to the current wording of the academic freedom provisions in the Higher Education Support Act 2003, and that universities adopt a voluntary umbrella code which would clarify the importance of academic freedom in the plethora of university polices, such as codes of conduct, that weaken the application of academic freedom.

Walker Review

At the end of 2019, all Australian universities agreed that within a year they would implement ‘the French Code’. Apparently, unhappy with progress, in August 2020 Minister Tehan asked Emeritus

Professor Sally Walker AM to review the implementation of a Model Code which universities had agreed to by the end of 2020. Professor Walker’s report, published in December 2020, finds that a considerable amount of work remains in aligning university policies and codes with the French model code on academic freedom and free speech.

The report shows that while 33 universities had claimed to have completed the implementation of the Code, only nine could be considered to be fully aligned. From the NTEU’s perspective, the Walker Review not only revealed universities tardiness in dealing with the implementation of ‘the Code’ but perhaps more importantly, university managements that are more concerned with protecting an institution’s reputation than they are in upholding academic freedom, one of the essential characteristics which differentiates universities from other types of education providers.

This hostile attitude to academic freedom is no more clearly demonstrated than in two recent court cases involving: Professor Peter Ridd and James Cook University; and Tim Anderson and University of Sydney. In both these cases the court found that the universities' code of conduct provided the universities with the power to discipline the academics, despite their claims of academic freedom.

In this regard, the NTEU is particularly welcoming of some of Professor Walker’s findings and recommendation including that:

• All universities adopt an overarching single policy or code that deals with academic freedom and free speech. • Universities should remove from definitions of academic freedom limitations that are not included in the code such as limiting it to a person’s area of expertise or within standards of scholarship.

• Where universities have policies, code or procedures (including codes of conduct) that leave room for the exercise of administrative discretion or evaluative judgments that could limit freedom of speech or academic freedom, that these policies should be amended to make it clear that the power or discretion must be exercised in accordance with the university’s academic freedom or free speech policy or code. She makes it clear that it is simply not good enough to say the polices need to be ‘read with’ or ‘subject to’ the code.

Protecting uni staff

However, this does not go far enough to ensure that university workers are protected from administrative overreach. Without a clear, readily enforceable right to exercise academic freedom and the ability to seek a remedy if it is breached by the university, it might as well cut the pretence and stop calling itself a university.

At the time of writing, the Government had (on the insistence of One Nation) introduced the Higher Education Support Amendment (Freedom of Speech) Bill 2020 into Parliament. When passed, this Bill will amend the Higher Education Support Act 2003 to incorporate part of French’s recommended wording changes including his proposed definition of academic freedom. While the adoption of French/Walker recommendations would go a long way to clarifying the primacy of academic freedom and free speech within our universities and limit universities’ ability to constrain or limit their exercise, NTEU still believes that the only way to guarantee individual staff members’ academic freedom rights is through strong clauses within Enterprise Agreements.

In the Anderson case, the University of Sydney itself argued that its Enterprise Agreement did not create enforceable rights. Australia’s oldest institution told the Federal Court that it did not want its academics to have rights.

Academic freedom also remains a key issue being litigated in Australia’s highest courts. In February 2021, the High Court granted Peter Ridd special leave for his case to be heard and determined by the High Court. That will proceed later in the year and will provide one of the first High Court decisions on the issue of academic freedom.

In addition, NTEU has lodged an appeal in the Full Court of the Federal Court to defend the intellectual freedom clause in the University of Sydney Enterprise Agreement. That case will also be heard later in 2021.

We will keep you informed of these important cases. This must be a call to action. NTEU commits to making academic freedom a central issue in Round 8 bargaining, but it is up to all of our members to start to talk about the issue. ◆