Should higher education providers have double academic freedom regulation?

Last week the government released a new legal definition of academic freedom and freedom of speech on campus for consultation,  following a recommendation made by the French review of free speech in Australian higher education. The new legal definitions align with a model university-level policy that French supported and the education minister, Dan Tehan, has been encouraging universities to adopt. I have reservations about the wording that I have explained in another blog post. This post is a more technical one about the definition’s role in the higher education regulatory structure.

The new academic freedom definition would apply to the Higher Education Support Act 2003  (HESA) which is the funding legislation, and the Tertiary Education Quality and Standards Act 2011, which is the main academic legislation. Amendment of the TEQSA legislation, and the consequent changes to the Higher Education Threshold Standards, are the more significant.

To be registered at all by TEQSA, a higher education provider would need to have a clearly articulated higher education purpose that includes a commitment to and support for freedom of speech and academic freedom (currently ‘free intellectual inquiry’). A subsequent section places responsibility on the provider’s governing body to ‘develop and maintain an institutional environment in which freedom of speech and academic freedom is upheld and protected’ (currently ‘freedom of intellectual inquiry’).

HESA’s scope is narrower than TEQSA’s, as HESA only applies to higher education providers receiving public funding, including HELP loans. As of 2018, there were about 30 higher education providers not covered at all by HESA. And the main HESA academic freedom provision has narrower scope than that.  Only Table A and B providers (essentially the universities, omitting non-university higher education providers) must have a policy that upholds ‘free intellectual inquiry in relation to learning, teaching and research’ (section 19-115). Under the proposed changes, that would be changed to a ‘policy that upholds freedom of speech and academic freedom’.

One question this raises is what does the HESA policy under section 19-115 require that higher education providers won’t already be doing as a condition of TEQSA registration?

I can see a rationale for different rules applying for publicly-funded universities that should accommodate a wider variety of intellectual perspectives than say faith-based colleges. But the same very expansive definition of academic freedom and freedom of speech would be applied to both through the TEQSA requirements.

Although the academic freedom definition would be the same for the TEQSA Act and HESA, in practical terms the TEQSA rule looks like a stronger influence on university behaviour. Under HESA the requirement is just to have a policy that may or may not be enforced effectively. Under the TEQSA requirement to  ‘develop and maintain an institutional environment’ there seems to be much more scope for the regulator to decide whether the policy is effective or not.

The main practical effect of the HESA section 19-115 duplication seems to be that the minister would have his or her own power to intervene, independently of whatever TEQSA is doing (under section 136 of the TEQSA Act the minister can only give TEQSA directions of a general nature; he/she could not instruct it to intervene in a specific case). But it would be a problem, I think, if a university ending up being punished twice for essentially the same transgression.

TEQSA should be primarily responsible for academic matters, and HESA should take its judgments as given given unless there is some clear reason for linking funding eligibility or levels to academic matters or indicators.

Although there is a case for removing section 19-115 from HESA as a redundant obligation on  higher education providers, a HESA academic freedom provision is worth considering as a constraint on government.

My main concern here is that several HESA provisions have excessively broad ministerial discretion, which some general academic freedom protections could help constrain. The most obvious of these is the wide discretion around the content of funding agreements with universities. But also of some concern are the ‘other grants’ provisions used to fund research block grants and the conditions applied to NUHEP funding approval.

Inclusion of the new academic freedom definition in HESA’s objects, which is proposed, would influence how a court interpreted other HESA provisions. But that is not as strong as inserting a direct protection of academic freedom as a constraint on ministerial decision making.



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