Launched in March, Open Minds is a timely book for Australian university leaders and higher education policy makers. It has had thoughtful reviews from Peter Tregear and Andrew Norton.

Law professors Adrienne Stone and Carolyn Evans (the latter is vice-chancellor at Griffith University) bring context and clarity to the uses and limits of academic freedom and free speech rights. With Melbourne Law School colleague Jade Roberts, they compare recent local efforts to draw clear policy lines with approaches in the UK, the US, Canada and New Zealand. Here complex terrain is mapped with nuance. Attuned to the “culture war” politics of the Australian debate, Evans and Stone assess the results of the 2019 French Review and the controversies that led to it.

Like the Review, Open Minds rejects claims of a “free speech crisis” on campuses. And like the Review it rejects calls on government to prescribe institution-level policy sector-wide, by way of statute. Evans and Stone endorse the Review‘s proposed legislative reform to define academic freedom and free speech more distinctly than the omnibus Higher Education Support Act term “free intellectual inquiry”. As well, they endorse its “Model Code” as an acceptable way to meet the distinct requirements of academic freedom and free speech, and as a useful basis for clarifying policy within universities.

The book declares two broad aims. First, to inform current debates with reference to the Australian higher education context and our local history of campus controversies.

A second, larger aim is to elucidate and disentangle the different scope and function of free speech (with its open-democratic-society purposes) and academic freedom (with its higher-learning-university-mission purposes). In sum: “Freedom of speech is a political freedom that should be enjoyed by all people in democratic nations. Academic freedom has a more specific purpose. It protects the pursuit and dissemination of knowledge through free inquiry…”

Echoing the French Review, Evans and Stone note that in either mode, the wider society’s legal limits on free expression apply on campus also: “Academics, staff and students have no greater right than anyone else to defame, threaten (or) engage in racial and religious vilification…”

A third apparent aim, writ large in the book’s Foreword, Introduction, an Appendix and on the book’s back cover, is to rebut once again alarmist claims from one of the sector’s most vocal critics, the Institute for Public Affairs. Based on its audits of university policies and campus incidents prior to the French Review, the IPA claimed a “free speech crisis” in Australian higher education due to lack of explicit policy protection, and chilling prohibitions on “insulting” or “offensive” language. The IPA’s proposed solution is sector-wide imposition of the “spirit” of the University of Chicago’s 2014 “Principles” statement, as has happened in parts of the United States and Canada.

Overall this book will be welcomed by the Australian university sector establishment. Recalling the anti-Communist 1950s and the protest movements of the ’60s and ’70s, Evans and Stone conclude that “there has never been a golden age of openness, freedom and tolerance in Australian universities”. As well, they point to systemic external risks to free inquiry, such as governments, industry partners or philanthropists becoming too prescriptive about the programs they fund.

However, the authors do not wave off concerns about systemic internal risks. Their substantive case offers cold comfort to those who dismissed any need for the French Review, or suggested that it found no real problem, after all.

Acknowledging serious challenges, Open Minds aims to head off simplistic solutions that give little practical guidance to front-line scholars and university administrators. Evans and Stone warn against “free speech absolutism” based on “grand statements of principle” such as “the Voltaire-inspired I disapprove of what you say, but I will defend to the death your right to say it“. Echoing French, they note that “the reality is that freedom of speech is not truly absolute anywhere … In all systems of law and in all serious political thinking, freedom of speech has limits.”

Universities are systems designed to support higher learning communities and processes, set within wider social systems. Regulating expressive conduct on campus, in ways that promote learning, becomes a complex balancing act. Apart from laws preventing harmful forms of speech, the context here is an institution with a duty to foster staff and student “wellbeing”. Good policy must address these layers of context and purpose.

Near the end of the book, Evans and Stone compare the Chicago Principles with a Canadian statement on Freedom of Speech from the University of Toronto in 1992. Both promote free exchange as mission-critical. But the Toronto statement adds that the “purpose of the university also depends upon an environment of tolerance and mutual respect … free from discrimination and harassment.”

Evans and Stone concede that the two statements are “not necessarily inconsistent”. (As their Chicago excerpt here makes clear, the university “may restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment … or that is otherwise directly incompatible with the functioning of the University”. But, they argue, Toronto puts more emphasis on “an inclusive and respectful environment” which (as elaborated in a separate Toronto statement on diversity) “facilitates the free expression of … diverse perspectives through respectful discourse…”

Their point is that an Australian university could as readily choose Toronto as its reference point: “Freedom of speech is highly valued, but if members of the university are not treated as equals and cannot enjoy an environment in which they are able to participate fully, freedom of speech rings hollow … The vision of a university that seriously considers equality as part and parcel of its free speech principles should not be overlooked due to an uncritical reflex to adopt the Chicago Principles”.

For its part, the French Review points to Chicago (though not Toronto) as a “useful guide” for designing clearer policy in an Australian context. That is, the Chicago Principles “assert the paramountcy of freedom of expression and the importance of academic freedom, but they also recognise reasonable qualifications”.

How substantive the extent of the contrast with Toronto is remains debatable. While Open Minds doesn’t cite the Chicago line on “civility and respect”, the Review does. In line with its critique of Australian university prohibitions on “offensive” speech, the Review‘s stance in its Model Code resembles the Chicago stance, which puts that issue this way: “Although the University greatly values civility, and although all members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community”.

Since Toronto and Chicago universities both have separate diversity policies, how much emphasis they place on this in their free expression policies may not matter for Australian purposes – other than as a way of countering calls to impose a Chicago-type template in Australia. (In fact, the Review notes, Canada’s Ontario government did just this in late 2018, in a “rather abrupt and heavy-handed” way, which its universities had to comply with. The Review does not recommend this approach for Australia.)

As Open Minds notes, the Model Code’s constraints echo Australian anti-discrimination law, even as the Code “fortifies the commitment to freedom of speech”. That is, an Australian university’s statutory duty to “foster the wellbeing of students and staff” (including by preventing unfair treatment as defined in law) “does not extend to a duty to protect any person from feeling offended or shocked or insulted by the lawful speech of another”. This faint Chicago echo reflects the Code’s not dissimilar stance, which casts free expression as a “paramount value” and academic freedom as a “defining value” while also recognising reasonable (but limited) restrictions.

In the end, Evans and Stone conclude that the balance French strikes here is “acceptable”. They endorse the Model Code as a “useful starting point for any university wishing to introduce such a code”, while maintaining that “adoption of the Model Code should remain voluntary” (as French recommended).

This conclusion will bring comfort to university sector leaders concerned about pressure from government ever since the Review to “implement” the Code (in practice, by aligning their own policies with its core provisions, in spirit if not in letter). Less comfortably, parts of Open Minds challenge insider assertions before and after the Review, that free expression on campuses was “alive and well“; that the Review itself was “unnecessary“; and that any statutory change that might follow what it did find would be “aimed at solving a problem that has not been demonstrated to exist“.

One clear challenge to that narrative is the book’s analysis of the Peter Ridd case. This, Open Minds notes, was one of the small number of widely reported controversies that led to the Review.

(In early 2018 James Cook University sacked Professor Ridd in the wake of complaints about his lack of respect toward colleagues and Reef research institutes. As if to demonstrate the “chilling effect” such cases may create – a general issue the Review highlights in its General Conclusions – JCU’s trawling of Ridd’s emails to build its case led other JCU staff to stop using their office email accounts.)

Echoing French (and implicitly, Chicago) on the problem with rules that prohibit various forms of disrespect, Evans and Stone argue that university codes should not make “civility” mandatory. In the case at hand: “Whatever one thinks of the substance of the scientific dispute itself … the requirement for ‘civility’ or ‘collegiality’ risks turning a common … form of academic dispute into an occasion for suppressing academic freedom”. Also in line with French, they argue that “academics should not be required to support the university’s brand … academics should be able to speak out … even when doing so involves harsh and even disrespectful criticism of their colleagues or university”.

As a rare public critique from senior insiders, Open Minds may signal an end to the sector’s “Voltaire drought” on the Ridd affair. Since 2018, most public criticism of his treatment (other than from the staff union) has come from outside universities*.

In sum, Open Minds examines these issues and debates more transparently and open-mindedly than most. However there are some gaps and blind spots in the book’s coverage of the Review.

In his Foreword to the book, former vice-chancellor Glyn Davis highlights how conservative critics (notably, the IPA) accuse Australian universities of suppressing rights and creating a “chilling atmosphere that prevents the full flow of debate”, despite the Review‘s finding of “no evidence for any systematic threats to academic freedom or freedom of speech on campus”. Davis suggests that IPA claims simply reflect its ongoing “culture war” against universities – to the extent that it ignored the Review’s “key finding” which was “just the opposite” of the IPA’s own “crisis” narrative. Further, Davis suggests that the Review itself is “somewhat contradictory” in that “despite finding no case to answer, French nonetheless recommended statutory amendments … and a model code”.

There are problems with this account. First, the Review makes clear that its “no crisis” finding does not mean that all is well, or that there are no systemic threats. The main one is outlined in the Review‘s General Conclusions: “Many of the higher education rules and policies mentioned in the Report use broad language capable of impinging on freedom of expression”. Terms such as “lack of respect” were “rife on university campuses in Australia” and could be applied widely and restrictively. The Review‘s remedy fits its diagnosis: a Model Code with clearer protections for free expression (and with clear links to the constraints on this, in relevant Australian laws), that can be used to guide needed self-reform. Specifically, the Code’s core elements are designed to “restrain the exercise of overbroad powers to the extent that they would otherwise be applied adversely to freedom of speech and academic freedom without proper justification”.

Second, concerns about systemic threats to academic freedom are not reducible to the “culture war” agendas of conservative commentators. While Open Minds doesn’t mention it, the Review notes that the National Tertiary Education Union had identified what it calls “cumulative threats to academic freedom and free intellectual inquiry from both within and outside Australian universities”. These include: “The propensity of universities to prioritise profitability, reputation and financial viability above core academic values, and to characterise as misconduct the exercise of academic freedom that may put those priorities at risk.”

The NTEU is not an IPA fellow-traveller. But its response to the Review is telling: “In the most recent round of enterprise bargaining, a significant number of universities sought to either remove or to water down provisions that protect academic and intellectual freedom. In addition, many universities sought to expand the scope of misconduct provisions by seeking, as serious misconduct, conduct that causes a risk to the reputation, viability or profitability of the University … It is obvious that without a strong academic and intellectual freedom clause … such provisions in misconduct clauses could, and would, be used to suppress freedom of expression … In the wake of the French Review, NTEU has called on Universities Australia to negotiate a common agreed statement on these issues for incorporation into Enterprise Agreements … Despite the fact that the universities proclaim that they are defenders of academic freedom and free speech … they have rejected that call. NTEU asked them to give force to their rhetoric. They declined…”

Third, the Review‘s terms of reference set limits on the scope of its own inquiry. Had the main aim been to test the IPA’s “crisis” allegations, French could have been asked to survey the sector to assess whether (say) self-censoring among students, or the suppression of (say) the views of conservative scholars, was commonplace**.

Seen in this light, the Foreword to Open Minds reprises the defensiveness of sector leader responses to the Review and its Model Code, summarised by one vice-chancellor as: “There’s no problem. If there is, we can fix it. Trust me, I’m a vice-chancellor. Go away.”

That kind of denialism is writ large in the sector’s peak body messaging. (Its references to “codes” and “courtesy” may plausibly be read as sector leader support for JCU’s rationale for its treatment of Ridd.) Before the Review was announced in November 2018, Universities Australia issued a statement: “Australian university leaders reaffirm their commitment to the enduring principles of academic freedom and freedom of expression … These freedoms apply in the context of Australian law and university codes of conduct … Australian universities foster vigorous debate and encourage the contest of ideas in a respectful, professional and courteous manner.”

With the Review‘s announcement a week later, UA dismissed any need for a review, on the basis that in policy, culture and practice free expression was “alive and well” across the sector. When the Review‘s report landed in April 2019, UA reiterated its earlier claims: no crisis, all is well – we will give the Review “careful consideration”.

Unfortunately this response was followed later in April by the first Ridd-JCU court case, which backed Ridd’s view of his rights in JCU’s enterprise agreement and the university’s failure to uphold them. Then came the surprise result of the May 2019 election. The conservative Morrison government, Education Minister and Model Code were not about to disappear. By June, university leaders were being criticised by the Minister for “insist(ing) there is simply no problem” and refusing to support the Code. By then the Code had been endorsed (in principle) by university chancellors after a briefing from French (who is himself a university chancellor).

Meanwhile, the Review findings did not substantiate UA’s “alive and well” narrative. Nor its suggestion that with “more than 100 policies, codes and agreements” in place across 39 universities, free inquiry was well protected. Nor its claim that “A culture of lively debate and the vigorous contest of ideas is strongly in evidence on Australian university campuses”.

In its General Conclusions, the Review noted that along with clearer formal protections, a supportive institutional culture is key. In an apparent rejoinder to the sector’s insistence that there was no problem, the Review observed that: “The recitation of a generally expressed commitment to freedom of speech and academic freedom does not of itself provide strong evidence of the existence of such a culture.” As for the sector’s plethora of policy commitments, French did not say that their protections were often obscured by layers of verbiage that left the rules of professional conduct, at best, as clear as mud. But he did say that any immediate global review of all relevant policies would be “like cleaning the Augean stables“.

Against such a backdrop, core aspects of the Model Code provide a kind of policy snowplow where policies overlap and contradict each other. As the Ridd case shows (and as Open Minds notes in that case), an apparently clear-cut right in one place may be voided by countervailing restrictions in another***. While Open Minds doesn’t cite this aspect of the Code, the Code offers a policy vaccine to the future spread of such cases: “This Code prevails, to the extent of any inconsistency, over any non-statutory policy or rules of the university.”

By design, this limits the scope for suppression or over-reach via policies addressed to other matters. In this way the Code addresses NTEU concerns with scope creep in codes of conduct. Often these allow universities to proclaim their commitment to academic freedom in principle, while leaving room to renege in practice. While the Review didn’t state its position on the Ridd matter (then still being considered in court), it did note Ridd’s argument, that “his dismissal reflected an unjust application of JCU’s Code of Conduct and Misconduct policies and JCU’s mistaken view that these policies override the University’s Enterprise Bargaining Agreement”.

This design feature may explain some of the resistance to calls for greater Code adoption, and for standalone policies on free expression. Yet the clarity it offers can hardly be conflated with any “heavy-handed” intrusion on institutional autonomy. In her late 2020 review of the sector’s progress with adopting the Code (again, by way of alignment, not replication) former vice-chancellor Sally Walker found that 9 of the 33 universities with completed internal reviews were “fully aligned”, 21 had devised a single overarching policy, 13 had defined academic freedom more restrictively than in the Code, and 8 still required academic freedom to be subject to a separate code of conduct.

In 2021 the university sector still faces other, larger challenges. Institutional self-reform to address the findings of the French Review remains a work in progress. Open Minds is essential reading here. It offers a rich set of insights and examples to aid that task.

Notes

*Public criticism of Ridd’s dismissal has come mainly from outside the sector and from conservative critics (such as Janet Albrechtsen in The Australian and John Roskam in the Australian Financial Review). But also from other outsiders unaligned with conservative politics (such as Gay Alcorn in the Guardian). Apart from calls by the NTEU to reinstate Ridd in 2018, criticism from within the sector has been rare. Along with Evans and Stone, recent “Voltaire drought” exceptions include two other law professors (James Allan at the University of Queensland, George Williams at the University of New South Wales).

**For law professor James Allan, a limitation of the Review was that it “did not consider the … lived experience of academics on the ground, including how certain points of view — we all know which ones — might indirectly affect promotions, hiring, grant-getting and … the ease of being published.”

*** Some professors find JCU’s sanctions against Ridd at odds with any meaningful idea of academic freedom, and likely to have chilling effects if upheld by the High Court later in 2021. Law professor George Williams puts it this way: “The fact that the outcome is so uncertain and, indeed, that the case is on foot in the first place demonstrates weaknesses in the protection of academic freedom. The ability of academics to publicly debate and question the quality of research should not be in doubt”…

Further reading

Kathryn Gelber, October 2016, University changes to academic contracts are threatening freedom of speech

Matthew Lesh, September 2018, As unis stifle free speech, we need a law to stop the rot

Adrienne Stone, October 2018, Four fundamental principles for upholding freedom of speech on campus

Glyn Davis, December 2018, Special pleading: free speech and Australian universities

Matthew Lesh, December 2018, Free speech on campus audit 2018

Kathryn Gelber and Kristine Bowman, June 2019, Dan Tehan wants a ‘model code’ on free speech as universities – what is it and do unis need it?

Adrienne Stone, November 2019, Two university freedoms

Gideon Rozner, August 2020, IPA welcomes review into university free speech code implementation

Geoff Sharrock, September 2020, Peter Ridd and the French Review connection

John Ross, December 2020, Make universities accountable for academic freedom, says review (Walker Review)

Peter Tregear, March 2021, Book review: Open Minds explores how academic freedom and the public university are at risk

Andrew Norton, April 2021, Academic freedom as a principle and a practice (a review of Open Minds)

Cordelia Fine, May 2021, It’s the unspoken rules on campus that silence

George Williams, June 2021, As Peter Ridd case shows, pursuit of truth not always a civil affair

Excerpts

Michael McNally, June 2018, NTEU statement calling for the reinstatement of Professor Peter Ridd

Of most concern is that Professor Ridd was sacked primarily for an alleged breach of confidentiality and insubordination. To summarise the University’s apparent position, Professor Ridd was required to keep quiet about the formal censure he received last year. That censure was the result of a misconduct process that management ran about his comments on the science pertaining to the Great Barrier Reef and scientific method used to underpin that science. They said that those comments were made inappropriately and disrespectfully. They said his comments denigrated his colleagues. They said that the findings and the censure were confidential. Professor Ridd did not accept the results of the internal misconduct process and did not accept that he should remain quiet about what he saw as an injustice. He went to the Federal Court to protect himself. In my previous letter, I argued that the Enterprise Agreement did not require confidentiality about the misconduct process on the part of Professor Ridd. To the contrary, I argued that the Intellectual Freedom clause in the JCU Agreement explicitly allowed him to question university processes and decisions. I stand by those statements. It is ironic in the extreme that JCU management appear to have been trying to protect the reputation of the University and bodies like the Australian Institute of Marine Science. Given the nature of the (entirely predictable) extensive media coverage, all management have done is to feed a right-wing media narrative that universities are conformist and actively suppress heterodox views on topics such as climate change…

Matthew Lesh (IPA), September 2018, As unis stifle free speech, we need a law to stop the rot

The federal government needs to introduce US-style campus free-speech legislation to safeguard free intellectual inquiry and open debate at Australia’s universities. We are in the midst of a campus free-speech crisis. Universities have cancelled speakers, censored academics and charged special security fees for conservative speakers. This month a police riot squad was called to the University of Sydney in response to students violently disrupting an event with psychologist Bettina Arndt. Earlier this year geophysicist Peter Ridd was sacked by James Cook University after expressing a contrary position on the health of the Great Barrier Reef. Last year Monash University and the University of Sydney ­capitulated to demands for course content censorship — including a quiz and a map — by nationalistic Chinese international students. Also last year, the University of Sydney Union attempted to block the screening of The Red Pill because, it was claimed, the mere showing of the video could “physically threaten women on campus”. In 2015, the University of Western Australia rejected Bjorn Lomborg’s Consensus Centre after he was targeted by students, academics and media for his views on climate change policy. These are not isolated incidents. Academics have voiced concern about the progressive mono­culture at our universities jeopardising research and teaching. Students with a different perspective are too scared to express their contrary opinion. Meanwhile, risk-adverse university bureaucracies succumb to censorious demands. Universities also maintain policies that chill free speech by preventing insulting or unwelcome comments, offensive language or, in some cases, sarcasm and hurt feelings…

Universities Australia, November 2018, University leaders reaffirm commitment to longstanding ideals

Australian university leaders reaffirm their commitment to the enduring principles of academic freedom and freedom of expression on campuses and amongst their students and staff. These freedoms apply in the context of Australian law and university codes of conduct, which enable a wide range of diverse opinions to be expressed. Australian law prohibits hate speech, discrimination and incitement to violence. Australian universities foster vigorous debate and encourage the contest of ideas in a respectful, professional and courteous manner. In a statement from the Universities Australia Plenary, leaders from 39 universities reiterated their long-standing commitment to the founding ideals of our university communities: “Australian universities restate our enduring commitment to academic freedom and intellectual inquiry. We also restate our enduring commitment to freedom of expression on our campuses and among our staff and students.”

Universities Australia Chair Professor Margaret Gardner said: “Every day on campuses across our country, students and academics debate ideas freely, with respect for evidence and academic expertise, and engage with a broad diversity of views.” “This lively culture of debate is alive and well in our nation’s university communities.” This latest reaffirmation builds on the 2008 Universities Australia statement on academic freedom and the need to ensure teaching and research remains free of external interference. That statement said: “Universities have a special role as institutions dedicated to free, open and critical expression across the full scope of human knowledge and endeavour. Central to this role is the freedom of staff and students to teach, research, debate and learn independent of external political circumstance and pressure.”

Australia’s 39 universities nurture the skills of our students to debate ideas, develop their critical thinking skills, and engage with both views they agree with and views they disagree with. We educate the next generation to engage with ideas, challenge themselves and others, and to do so using evidence and courtesy. Both invited speakers and those who wish to protest the views of those speakers exercise their freedom of expression at such events. We will continue to promote this thriving culture of debate and speech.

Universities Australia, November 2018, Freedom of expression alive and well on university campuses

A culture of lively debate and the vigorous contest of ideas is strongly in evidence on Australian university campuses. Education Minister Dan Tehan’s review of academic freedom and freedom of expression comes a week after the nation’s Vice-Chancellors restated their commitment once again to those enduring principles. Between them, Australia’s universities have more than 100 policies, codes and agreements that support free intellectual inquiry. Universities Australia Chair Professor Margaret Gardner said: “In this context, it is unclear what issue the Government is seeking to address.” “Australian universities have been on the public record through the ages affirming our longstanding commitment to informed evidence-based discussion and vigorous debate,” she said. “Australian universities teach students how to think, not what to think — and we teach them to engage both with ideas they agree with and those they don’t agree with.” “As we reaffirmed only a week ago, we educate the next generation to engage with ideas, challenge themselves and others, and to do so using evidence and courtesy.” “University staff and students should be free to teach, learn, debate and research without political interference.” Professor Gardner noted some recent assertions in recent media reporting had mischaracterised academic freedom and downplayed the robust state of debate on university campuses. “Some commentators on free speech at Australian universities have been very wide of the mark — jumping to the wrong conclusions or selectively quoting from university policies and codes.” “These same conclusions would not meet the threshold test of academic inquiry — informed by evidence and facts.” “They are made by advocates who appear to want Government to override university autonomy with heavy-handed external regulation and red tape.” “Despite these incorrect assertions, a wide range of opinions are freely expressed on campus— and in the context of Australian law and university codes of conduct.” Universities Australia did not provide input to the terms of reference and our member universities remain strongly of the view that we will continue to uphold these freedoms ourselves in line with the important principle that universities are autonomous institutions.

Katherine Gelber, November 2018, There’s no need for the Chicago Principles in Australian universities to protect free speech

Justice French is being asked to review the “rules and regulations protecting freedom of speech on university campuses”. This will include codes of conduct, enterprise agreements, policy statements and strategic plans. This is despite the fact universities already protect freedom of speech and, relatedly, academic freedom … Shortly before Justice French was invited by the government to conduct a review into free speech in Australian universities, he gave a speech on the issues. He recognised that even a detailed and prescriptive charter would not provide a framework in which difficult cases can be clearly and uncontroversially resolved. Nevertheless, he was open to the possibility of legislative interventions to impose “protective rules”. However, if the Chicago principles were to form the basis for any such legislative intervention, they would be unlikely to be of benefit in resolving the issues with which the minister appears to be concerned. This is for two reasons. First, Australian universities already protect free speech in accordance with principles very similar to those enunciated in the Chicago principles. All universities are required by Australian law to uphold “free intellectual inquiry in relation to learning, teaching and research”. Universities’ codes of conduct already uphold the right of students to engage in critical and open inquiry. The second reason is that the Chicago principles recognise that free speech is not a reason for protecting unlawful conduct … Applying the principles here would also make no difference to other restrictions on speech in Australia … This inquiry is expensive and unnecessary. There is no good evidence we have a problem with free speech on our campuses. Justice French’s review will take four months. While we await the outcome, university staff will no doubt continue to uphold their existing commitments to robust and open debate in learning, teaching, research and engagement.

Universities Australia, April 2019, French Review finds no campus free speech crisis

The review into freedom of speech in Australian universities has found no evidence of a free speech crisis on Australian campuses. The 300-page report by former Chief Justice Robert French was released this morning and found claims of a free speech crisis are “not substantiated.” The report recommends universities consider a voluntary model code on free speech but argues that increased government regulation is not the answer. Universities Australia Chief Executive Catriona Jackson re-affirmed that a culture of vigorous debate is alive and well in Australia’s universities …“Universities will give careful consideration to the recommendations in the 300-page report.” “However, we remain concerned that sector-wide legislative or regulatory requirements would be aimed at solving a problem that has not been demonstrated to exist and any changes could conflict with fundamental principles of university autonomy.”

French Review, General Conclusions

Reported incidents in Australia in recent times do not establish a systemic pattern of action … adverse to freedom of speech or intellectual inquiry in the higher education sector … Nevertheless, even a limited number of incidents seen as affecting freedom of speech … may have a ‘chilling effect’ … Many of the higher education rules and policies mentioned in the Report use broad language … it does not require much imagination to apply (terms such as “lack of respect”) to a considerable range of expressive conduct … That kind of terminology in rules and policies, which may affect expressive conduct, is rife on university campuses in Australia …The potential for overreach tending to erosion of important freedoms equates to a non-trivial risk of that erosion … A culture powerfully predisposed to the exercise of freedom of speech and academic freedom is ultimately a more effective protection than the most tightly drawn rule … The recitation of a generally expressed commitment to freedom of speech and academic freedom does not of itself provide strong evidence of the existence of such a culture … an immediate global review of all higher education provider rules or policies to narrow their application to freedom of speech and academic freedom would be like cleaning the Augean Stables. For this reason, it is recommended 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 … Essentially, its purpose is effectively to restrain the exercise of overbroad powers to the extent that they would otherwise be applied adversely to freedom of speech and academic freedom without proper justification…

Janet Albrechtsen, April 2019, Review’s code presents a bulwark against illiberalism

The man entrusted to review the state of free speech on campus is the unimpeachable former High Court judge Robert French. He concludes that free speech and academic freedom need greater protection on Australian campuses. Don’t be fooled by universities trying to define down this review … claiming there is nothing to see here. In fact, there is plenty to see … Don’t be tricked either by those seemingly trying to cloak this in the culture wars as just another damned skirmish between zealots … In his 300-page report, the former High Court judge recommends that universities adopt a model code that states that staff and students have a right to enjoy freedom of speech and that academic freedom is a defining value for a university … These principles could mean we never again see another academic treated as shabbily as James Cook University treated Peter Ridd … French’s principles are written by a lawyer. Dry and precise, they differ from the University of Chicago’s beautifully crafted 2014 Statement on Freedom of Expression … French tells Australian university leaders to step up, too: their broad policies and rules are easily exploited to restrict free speech. And culture matters: “A culture powerfully predisposed to the exercise of freedom of speech and academic freedom is ultimately more effective than the most tightly drawn rule. A culture not so disposed will undermine the most emphatic state of principles,” he writes. He ignores as unconvincing university submissions that they have this under control … Importantly, French’s principles make clear that a university has no duty to protect students from feeling offended, insulted or shocked…

Janet Albrechtsen, April 2019, That’s code for ‘conduct ourself as we tell you’

Last week, the Federal Court rejected JCU’s 17 claims against Ridd under the university’s code of conduct. Federal Court judge Salvatore Vasta made clear that JCU’s fundamental error was to assume its code of conduct “is the lens through which all behaviour must be viewed”. Rather than starting from the principle of intellectual freedom set out in clause 14 of JCU’s enterprise agreement with academics, a core value that goes to the mission of a university, JCU used its lengthy and loquacious code of conduct to restrain Ridd. Therefore, it did not occur to JCU, or to academics who complained about Ridd, that the best response was to provide evidence Ridd’s claims were wrong. The enforcers chose censure and sacking over debate. Rejecting JCU’s position, Vasta found the intellectual freedom clause is “the lens through which the behaviour of Professor Ridd must be viewed”. The judge said intellectual freedom allows people to express opinions without fear of reprisal … JCU will surely appeal this decision. Other universities will also be hoping for a favourable legal determination that upholds their codes of conduct as the final word, trumping even an intellectual freedom clause in an enterprise agreement with academics. All things considered then, we have reached a shameful state of affairs: university leaders spending hundreds of thousands of dollars to uphold coercive powers they have given themselves under codes of conduct but expending no intellectual effort in considering the need for a truly liberating charter of intellectual freedom such as that drawn up by the University of Chicago … Vaguely drafted codes of conduct are a conduit for double standards. And that is why they are bogus legal instruments. Every law student is taught that contracts can be voided for uncertainty. A boss should only ever have power to adversely affect a person’s employment in the clearest and most precise circumstances…

NTEU, June 2019, Academic freedoms must be enshrined in law

The National Tertiary Education Union (NTEU) has today welcomed the core findings of the French Review. It has called on the Federal Government to legislate to define academic freedom but said that a voluntary code was not sufficient to protect it. The Union has called for a statement to be negotiated for inclusion in collective agreements. The Union’s General Secretary Matthew McGowan said that the French Review found that while there was no ‘crisis of free speech’ on campuses, it recommended that it was important to strengthen the protections for academics and related staff. Mr McGowan said that academic freedom was a defining characteristic of universities, and that a world class and robust tertiary education sector was critical to Australia’s future. “The right to speak without fear or favour in a place of higher learning is important for our democracy,” said Mr. McGowan. He said that university staff were aware of incidents of political and funding interference in universities, and attempts to influence research and scholarship. “To the great shame of this sector, there have been at least ten universities recently trying to water down protections for staff regarding academic freedom.” Justice French has recommended a voluntary code and changes to legislation. “The Union believes that if we are serious about academic freedom, a voluntary code is not good enough, and unless staff have workplace protections in their collective agreements, changes to legislation will not guarantee freedoms”…

Dan Tehan, June 2019, There’s no excuse for university inaction on free speech

As our nation enters much-needed debates on freedom of ­religion and freedom of the press, it’s time for our universities to stand up and defend free speech and freedom of academic inquiry. They should start by implementing Robert French’s model code … The signals our universities send help to shape the society in which we live and the­ ­society our children will inherit. So, it is not surprising that ­reports over recent years of incidents regarded as affecting free speech on university campuses have generated concern within the broader Australian community. As French … observed in his recent Independent Review … “even a limited number of incidents seen as affecting freedom of speech may have an adverse impact on public perception of the higher education sector which can feed into the political sphere”. The growing sense that some students at universities and Australians more broadly are self-censoring out of fear they’ll be shouted down or condemned for expressing sincerely held views and beliefs, or for challenging widely accepted ideas, should concern us all.

While French correctly notes claims of a “crisis” on Australian campuses are not substantiated, if this is where we are headed as a society then we will end up a more divided and less harmonious Australia — and we should do everything we can to avoid that. Some taxpayer-funded universities insist there is simply no problem … But by burying their heads in the sand they are failing Australia and the students who will define our ­nation’s future. The fact there may be a broader cultural problem shouldn’t be an excuse for inaction on the part of universities. In fact, it should be the very reason to act and send a clear signal to students and to the broader Australian community that not only are universities places of robust and open inquiry, but that respectful discussion, debate and disagreement is a fundamental Australian value that lies at the heart of our democratic system.

The French review sets out a thorough and thoughtful analysis of the issues … French analyses a range of existing rules and policies that many universities have pointed to as providing sufficient protection for staff and students. He concludes: “Many of the higher education rules and policies mentioned in the report use broad language capable of impinging on freedom of expression.” While that may not be their aim, the possibility is concerning and should be viewed as a call to action. French’s proposed model code is clear and carefully crafted, embodying a set of umbrella principles applicable to all higher education providers. It delivers on its three objectives: ensuring that freedom of speech is a paramount value of universities; ensuring that academic freedom remains their defining value; and affirming their institutional autonomy. I urge all Australian universities and other higher education providers to implement the model code to send a clear and unambiguous signal to staff and students at our taxpayer-funded universities and to the broader community of the vital importance of free speech and academic inquiry.

Tim Dodd, June 2019, Campuses split over free speech

Australia’s university chancellors have endorsed the free speech model for campuses proposed by former High Court chief justice Robert French, trumping the objections of their vice-chancellors and Universities Australia, the sector’s main representative body. In a meeting last month, the chancellors, who chair universities’ governing boards, pulled rank on the vice-chancellors, who run the day-to-day affairs, declaring their support for the French model code. “The decision was made to approve the model code in principle,” said Mr French, who was at the May 20-21 meeting in Melbourne in his capacity as chancellor of the University of Western Australia. The chancellors’ decision contrasts sharply with the position of Universities Australia, which is run by vice-chancellors and has declined to back the French model. Mr French recommended that the model code should override university administrative policies and codes of conduct and ensure that lawful freedom of speech was “a paramount value” only restricted by law, reasonable regulation of access and the discharge of a duty of care to staff, ­students and visitors … The chancellors’ decision to ­assert their authority was made at a scheduled meeting of the University Chancellors Council at Deakin University. It was held concurrently with a regular, separate meeting of vice-chancellors ­arranged by Universities Australia … The chancellors made their ­decisions following a presentation from Mr French about his free speech review and the accompanying model code … Universities Australia chief executive Catriona Jackson said … uni­versity leaders and governing ­bodies were as one in their abiding commitment to freedom of ­expression and academic freedom, and universities were giving Mr French’s report “very serious consideration”.

Tim Dodd, June 2019, Holding out against French code not a viable strategy

The decision of chancellors to ­assert their precedence over university management on the freedom of speech issue is very significant for higher education. Ever since Education Minister Dan Tehan launched the review of freedom of speech in universities by former High Court chief justice Robert French last year, university management, represented by the body Universities Australia, has reacted defensively. It was seen as yet another threat to the autonomy of universities … In fact, if freedom of speech had to be reviewed, there could not have been a fairer or more reasonable person to review it than French who had thought deeply about the issue. He said clearly that there was no free speech crisis and came up with proposals that steered a middle course that would appear to be palatable to universities. Among the things he did not recommend was the imposition of laws that would prescribe to universities how they would deal with freedom of speech and academic freedom issues. His answer was a voluntary code that universities could subscribe to and align their policies to, with freedom to vary them where they saw necessary. That should have pleased the universities. It is puzzling that the vice-chancellors, represented by Universities Australia, did not back it. Now the chancellors who chair university governing bodies and are ultimately responsible for the institutions have intervened and said that freedom of speech is a matter for them. They have collectively got behind the French model code for freedom of speech. It’s no coincidence the chancellors are people with a huge reservoir of experience in business, politics and public life. It is clear to them, if not to the universities they preside over, that holding out against the free speech code proposed by French is not a viable strategy for universities.

Paul Kelly, June 2019, Freedom should be a no-brainer

The French report was a no-brainer. That it has been treated for many months as a piece of political radioactivity by many vice-chancellors only betrays … the phony nature of assurances made about intellectual freedom on university campuses … university chancellors after the Morrison government’s re-election felt obliged to take the lead. At a post-election meeting last month the chancellors received a briefing from French on his report and approved the core recommendation — in principle. In terms of university politics this is an extraordinary event. It reflects on the defensive and delaying tactics of vice-chancellors as embodied in statements from Universities Australia and the Group of Eight … French’s recommendation arose from his central findings — there is no “freedom of speech crisis” on Australian campuses but there is a distinct problem. French referred to the diverse range of rules, codes and policies in the university sector that leave room for “the variable exercise of administrative discretions … capable of eroding the fundamental freedom of speech and that freedom of speech which is an essential element of academic freedom”. He said “that fact constitutes a risk to those freedoms and makes the sector an easy target for criticism.” In short: no crisis but a problem. Yet the response from the universities has been disingenuous. Incredibly, they seized on the “no crisis” finding as some sort of vindication, overlooking the thrust of the report…

Deborah Terry (UA), June 2019, Universities shine in the contest of ideas

Freedom of expression and academic freedom go to the heart of what our universities do. They are fundamental to how we operate. This is why the recent review by former High Court justice Robert French is being given careful attention by our universities right across the country. In April, federal Education Minister Dan Tehan asked universities to give full and careful consideration to French’s detailed review and to adoption of the model code. And this is what they are doing. The minister noted the making of regulations and policies by a university was a matter for each institution. Such autonomy is ­another of the foundational principles of our universities. The ability of societies to grapple with differences of view and to engage in robust debate with both vigour and respect hinges on how we uphold these principles. The sector is appreciative of the diligence and care that French brought to the examination of these important matters. He concluded there was no substantiated evidence of a “crisis” with free speech in our universities. This was a welcome conclusion. Nevertheless, the review’s observations and recommendations require careful and detailed consideration. In Australia, each university has an interrelated set of policies that give life to such freedoms; set out expectations of staff and student conduct; and establish how these issues will be navigated. Hence the task of synthesising the observations in French’s 300-page review with the existing complex array of institutional policies and procedures is rightly the province of the leadership and governing bodies of each individual university. French himself says there are a significant number of policies across the nation’s universities that relate to freedom of speech or academic freedom. To synthesise these with the French review is a complex task. It is important to get it right. It takes time and care to do so.

At each university, vice-chancellors and chancellors are as one as they work through these questions and as they consider the adoption of the proposed model code. We share an abiding commitment to the ideas and foundational principles that establish our institutions. This was expressed powerfully once again in November last year, when vice-chancellors from our 39 universities issued a joint statement reaffirming an enduring commitment to freedom of expression and academic ­freedom. Australia’s universities have been on the public record through the decades affirming our commitment to informed evidence-based discussion and vigorous debate. As institutions, we nurture the skills of our students to debate ideas, develop their critical thinking skills and engage with a wide array of views — including those with which they agree and those with which they disagree. The exercise of free speech applies to both proponents and opponents of controversial ideas. You need only to look to democracy-defending protests around the world to see this in action. Surely the ideal is for a vigorous engagement and contest of ideas, passionately and peacefully expressed. Under wider Australian law, freedom of speech is not without limitation or caveat. There are, for example, prohibitions on hate speech and discrimination, as well as laws on defamation. University students and staff are, of course, subject to these wider laws, like the rest of the Australian population.

The skill of being able to engage in vigorous debate without suspending courtesy is one that our students will need if they are to succeed in the workplace and the world. The French review reminds us that the mission of universities includes responsibility for the maintenance of scholarly standards in teaching, learning and research. Hence universities teach students to seek out and weigh evidence, test and verify, and to form cogent arguments drawing on that evidence. At the same time, our university researchers keenly examine and respectfully debate ideas, new paradigms, evidence and conclusions. Universities play a fundamental role in the health of open, democratic societies worldwide. Australia’s universities are ever vigilant in defence of our democratic freedoms.

Alison Barnes and Gabe Gooding (NTEU), July 2019, Not quite the French revolution: No crisis of free speech

The National Executive of the NTEU considered the outcomes of the French Review and prepared a statement in response … In the most recent round of enterprise bargaining, a significant number of universities sought to either remove or to water down provisions that protect academic and intellectual freedom. In addition, many universities sought to expand the scope of misconduct provisions by seeking, as serious misconduct, conduct that causes a risk to the reputation, viability or profitability of the University, making it therefore a potential reason for dismissal. It is obvious that without a strong academic and intellectual freedom clause, or a specific exclusion for the exercise of academic and intellectual freedom, such provisions in misconduct clauses could, and would, be used to suppress freedom of expression by university staff … In the wake of the French Review, NTEU has called on Universities Australia to negotiate a common agreed statement on these issues for incorporation into Enterprise Agreements to ensure that the protection of academic and intellectual freedom is consistent across the country. Despite the fact that the universities proclaim that they are defenders of academic freedom and free speech, it is perhaps not surprising that they have rejected that call. NTEU asked them to give force to their rhetoric. They declined … French proposed that universities adopt a code of practice on academic freedom and freedom of speech on campus. While having some concerns with some provisions, NTEU agrees with much of this code, particularly the provisions that protect against hate speech … If universities are serious about their stated commitment to academic and intellectual freedom and freedom of speech, they would be willing to sign up to a binding code … While French rightly concluded that there is no crisis of freedom of speech on campus, he did identify that “the diversity and language of a range of policies and rules give rise to unnecessary risks to freedom of speech and to academic freedom.”  Increasingly expansive codes of conduct, the breaching of which constitutes misconduct or serious misconduct, are a key risk. These are codes are not the result of a negotiation or a collegiate process, they are developed by university management, and in most cases their underlying purpose is to protect the institution, which can be at the expense of academic and intellectual freedom … As the Chancellors and Vice-Chancellors stand-off about this issue – with the Chancellors Committee publicly backing the legislative definition and the voluntary code, and the Vice-Chancellors, through their representative Universities Australia rejecting the proposal – this story obviously has a long way to run. For our part, NTEU will continue to promote and act to give force to our policy quoted in the Review, that staff and students have the right to freely hold political and intellectual views and values and to express them publicly without fear of reprisal or retribution or restriction by university policies and procedures. Eventually, perhaps, the Vice-Chancellors will come to the party and agree to give force to their policies by agreeing to uniform enforceable rights for all staff and students.  

Greg Craven, July 2020, Free speech a character test for vice-chancellors

Last year, Education Minister Dan Tehan commissioned former High Court chief justice Robert French to have a look at academic freedom. He did, and proposed a protective code. Tehan liked it, and told universities to implement it, or he would. The French Code was not exactly a model of clear drafting, but its direction was plain. The universities’ collective enthusiasm was so deafening you could hear the smallest cricket chirp. “There’s no problem. If there is, we can fix it. Trust me, I’m a vice-chancellor. Go away.” Eventually, many universities made minor changes to their policies by way of symbolic compliance. But typically, the exemptions they contained were big enough to drive a bus through. There is a real challenge here, because protections for academic freedom always need some limit. A rogue professor cannot libel or slander, downright lie, or break the law. But sometimes the exemptions are larger than the right itself. Universities typically have two types of problem with freedom of academic expression. The first is corporate. This is where an academic writes something that could rile a major stakeholder: a sponsoring corporation, a government partner or — frankly — China. Vice-chancellors understandably, but not heroically, feel for their institutional wallet. The second assault on academic freedom is more insidious because it is internal. An academic strikes trouble because he or she writes something counter to the accepted wisdom of their faculty or university as a whole. This is deeply problematic, because the heart of academic freedom is the right to take a view with which your colleagues, and possibly the whole world, disagrees. But particularly in fields where ideological conflict is easy — law, history, political or environmental science — it can be very dangerous to be a dissenter.

John Ross, December 2020, Make universities accountable for academic freedom, says review

Australian universities have been told to tighten up their academic freedom and free speech policies, after a review found their adoption of a government-endorsed “model code” had been patchy. The review, by former Deakin University vice-chancellor Sally Walker, has produced 12 recommendations and “suggestions” to improve the code and universities’ alignment with it. It says some universities constrain academic freedom to staff members’ areas of expertise, and urges them to discard such “limitations”. But critics say academic freedom is being muzzled by institutional polices that require academics and students to comply with vaguely expressed codes of conduct, and – perhaps more insidiously – by institutional cultures that discourage expression of unpopular views. They include urging each university to adopt a “single overarching code or policy”. Universities would also be required to detail their efforts to protect free speech and academic freedom in their annual reports. Professor Walker’s review was commissioned in August to track universities’ adoption of the model code, formulated last year by former chief justice Robert French. Education minister Dan Tehan hinted at consequences for institutions that failed to embrace it. “Universities have until the end of the year to honour their commitment to align their policies with the French model code,” he said. “I strongly urge those universities that have not already done so to take action.” Such comments could inflame perceptions that institutional autonomy is being compromised over a non-issue. Universities point to Mr French’s failure to find a “free speech crisis” on campuses as evidence that academic freedom is part of their “DNA”. Professor Walker’s review found that 10 of the 33 universities that claimed to have implemented the French code had failed to do so in a convincing manner. Four had policies that were only partly aligned with the code, while another six were not aligned at all. Another eight universities were yet to implement the code … Some policies also leave too much room for “administrative discretion”, particularly when academic freedom clashes with codes of conduct or policies around the use of university facilities, the report adds. In such cases, academic freedom must take precedence. Nor can academic freedom or freedom of speech be constrained by requirements to behave “reasonably, professionally and in good faith”, the report says. “The policy or code must make it clear that failure to meet these expectations…will not attract any penalty or adverse action.”

Walker Review December 2020, suggestions:

“1. Universities should adopt a single, overarching code or policy dealing with freedom of speech and academic freedom.

2. Those universities whose policies do not already do so, should strengthen alignment with the Model Code by making it clear that academic freedom and freedom of speech are of such value that they will not be restricted or burdened except by restrictions or burdens permitted by their freedom of speech and academic freedom policy or code.

3. Universities should remove from their definition of “academic freedom” limitations that are not included in the Model Code definition…”

Department of Education, Skills and Employment, June 2021, Australian Government Response to Walker Review of Model Code Implementation

The Government challenges those universities not assessed as being fully or mostly aligned to go further in reviewing their statutes and policies to achieve consistency with the Model Code. The simplest way to deliver this is to adopt the Model Code as an institutional policy with clear and explicit capacity to override any other policy that could be read as being inconsistent with the Model Code. However, all relevant policies would benefit from being reviewed to ensure alignment with the Model Code. If universities were to act persuasively on Professor Walker’s advice, it could avoid the need for further regulation in the future to ensure that alignment.

George Williams, June 2021, As Peter Ridd case shows, pursuit of truth not always a civil affair

In material filed with the High Court, Ridd is pressing the necessity of intellectual freedom to the work of universities. He argues that universities cannot pursue knowledge for the public good without this freedom. After all, human knowledge is fallible and so must always be subject to contest and debate. As recognised in the JCU enterprise agreement, academics must be free to challenge orthodoxy and even criticise their employer. By contrast, JCU argues that the enterprise agreement recognises intellectual freedom but does not confer academics with this right. In effect, intellectual freedom is mentioned in the agreement, but not in any meaningful way that protects Ridd’s freedom of speech. As a result, JCU was entitled to apply its code of conduct to dismiss Ridd for his discourteous and disrespectful criticism of other academics … The fact that the outcome is so uncertain and, indeed, that the case is on foot in the first place demonstrates weaknesses in the protection of academic freedom. The ability of academics to publicly debate and question the quality of research should not be in doubt. We should also not expect that academics will always act politely and within civilised bounds. In the pursuit of truth, heated and sometimes intemperate debate is to be expected. Academics and universities need to be tolerant of sharp criticism and avoid the temptation to shut down debate.