As a condition of her vote for the Job-ready Graduates bill, One Nation Senator Pauline Hanson wants to add a new academic freedom provision to higher education legislation. According to yesterday’s media reports, the amendment would be in line with the wording recommended by the French review of freedom of speech in Australian higher education providers.

This change was already on the political agenda in early 2020, with consultations on the draft amendments. However, COVID-19 and perhaps Job-ready Graduates intervened and little has been heard of the issue recently, other than ex-Deakin VC Sally Walker being asked to look into implementation of the model code on university free speech proposed by Robert French.

I put in a submission to the legislation consultation, which recommended various amendments to the draft provisions, along with strengthening academic freedom to ensure that it was protected from government decisions.

This post is a slightly modified extract from the submission that explains the proposed amendments, with the aim of informing discussion if the Hanson amendment is introduced.

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The amendments

The proposed amendments to Higher Education Support Act 2003 and the TEQSA Act 2011 are intended to support the Model Code for the Protection of Freedom of Speech and Academic Freedom in Australian Higher Education Providers.

Proposed HESA amendments

1. Section 2-1 (a)(iv) of the HESA be amended to read:

2-1 Objects of this Act

The objects of this Act are:

(a) to support a higher education system that:

(iv) promotes and protects freedom of speech and academic freedom free intellectual inquiry in learning, teaching and research.

• Introduction of a definition of ‘academic freedom’ as follows:

“Academic freedom”, for the purposes of this Act and the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act) and any standards made under that Act, comprises the following elements:

• The freedom of academic staff to teach, discuss, and research and to disseminate and publish the results of their research;
• The freedom of academic staff and students to engage in intellectual inquiry, to express their opinions and beliefs, and to contribute to public debate, in relation to their subjects of study and research;
• The freedom of academic staff and students to express their opinions in relation to the higher education provider in which they work or are enrolled;
• The freedom of academic staff, without constraint imposed by reason of their employment by the university, to make lawful public comment on any issue in their personal capacities;
• The freedom of academic staff to participate in professional or representative academic bodies;
• The freedom of students to participate in student societies and associations; and
• The autonomy of the higher education provider in relation to the choice of academic courses and offerings, the ways in which they are taught and the choices of research activities and the ways in which they are conducted.

• Section 19-115 of the HESA be amended  to read:

19-115 Provider to have policy upholding free intellectual inquiry freedom of speech and academic freedom

A higher education provider that is a Table A provider or a Table B provider must have a policy that upholds freedom of speech and academic freedom free intellectual inquiry in relation to learning, teaching and research.

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As pointed out in the French review, legislative amendments are not essential to support the Model Code. For higher education providers that adopt the code its legal authority comes from their internal decision-making processes. They can make any policy that is not legally prohibited. Within the constraints of other speech-related law, such as defamation and vilification, higher education providers can have broad-ranging academic freedom and freedom of speech policies. 

TEQSA changes

The most important way in which the proposed changes would support the intent of the Model Code is to amend the Higher Education Standards Framework (Threshold Standards) 2015. This is a change to delegated legislation rather than the TEQSA Act itself. The Threshold Standards, as they are commonly called, are made by the minister on advice from the Higher Education Standards Panel, which has already indicated that it supports the change. Either house of parliament can disallow changes to the Threshold Standards. 

To be registered as a higher education provider under the TEQSA Act, the Threshold Standards currently require an organisation with or seeking registration to have a higher education purpose that ‘includes a commitment to and support for free intellectual inquiry in its academic endeavours.’ With the proposed definition, that purpose would expand beyond academic endeavours to include freedom of speech. 

Neither the TEQSA Act nor the Threshold Standards define ‘free intellectual inquiry’. TEQSA has significant discretion to decide what it means. Under the proposed changes, there would be a legal definition of academic freedom, and so TEQSA would have less discretion as to what the term means. 

TEQSA would not, as the amendment currently stands, need to take the Model Code as a guide to what the statutory definitions mean in practice. The code as drafted in the French report has no legal authority outside the institutions that adopt it. It is possible, however, that the minister may direct TEQSA to use something like the code in interpreting the statutory definitions. Under section 136 of the TEQSA Act the minister may give TEQSA general directions in the performance of its functions. These directions could also be disallowed by either house of parliament. 

Under the Threshold Standards, if the amendment is passed TEQSA must ensure that the ‘governing body takes steps to develop and maintain an institutional environment in which freedom of speech and academic freedom is upheld and protected’. Currently, the governing body has to ‘take steps to develop and maintain an institutional environment in which freedom of intellectual inquiry is upheld and protected.’ 

This widened obligation on the governing body has greater legal implications than a pro forma academic freedom and freedom of speech purpose. It would require TEQSA to check that such an environment exists. The government proposes adding freedom of expression questions to the Student Experience Survey, which is an annual survey of higher education students that investigates their satisfaction with teaching and other aspects of university life.

Results from the freedom of expression question could be one way in which TEQSA assesses whether universities are compliant with the Threshold Standards. The results could be added to the Risk Assessment Framework, which is a range of indicators used by TEQSA for the routine monitoring of all higher education providers. However, it may be difficult to judge whether student views as expressed in the Student Experience Survey are reasonable. 

Under TEQSA’s regulatory model it would not act as a formal arbiter on the various academic freedom and freedom of speech disputes that arise from time-to-time. It is not a complaints body. But where TEQSA sees problems of a more persistent or systemic nature it could attach conditions to registration. Breaching a condition could lead to a fine or in a worst-case scenario deregistration as a higher education provider. The maximum fine of 120 penalty units ($26,670 as of July 2020) means that for a large institution such a penalty is more an embarrassment than a financial influence on behaviour (section 113 of the TEQSA Act). TEQSA’s general legal requirement that it act proportionately means that deregistration is unlikely for a provider that it is otherwise performing well. 

HESA 2003 changes

For the section 19-115 of HESA requirement to have a policy on academic freedom and freedom of speech the amendments would clarify what the policy would need to contain to be compliant. Section 19-115 as it stands does not give the minister any authority to insist on the detail of French model code, but it seems universities have ‘agreed’ to this, and it is in the mission based compacts for 2019.

If a university did not have an academic freedom and freedom of speech policy, it could be penalised by a reduction of its grant(s) under Division 54 of HESA. The legislation does not specify a maximum penalty, although it does describe various considerations that the minster can take into account and the processes involved, including giving the university an opportunity to respond to any decision. 

The requirement to have a policy does not give the minister power to intervene in particular cases. Rather, the policy would give affected parties grounds for complaints to the relevant university authorities. Section 19-115 does not give the minister power to penalise the university for unsatisfactory decisions based on the policy.