Open Minds: Academic Freedom and Freedom of Speech in Australia is an accessible overview of the subjects in its sub-title. It covers rationales for academic freedom and freedom of speech, the current law, historical controversies, and emerging threats.

Its authors are two law academics, Carolyn Evans and Adrienne Stone, with Evans now a vice-chancellor. Jade Roberts, a legal researcher, assisted them.

As a general concept few people are against academic freedom. Nobody is calling for powerful figures – ministers, bureaucrats, or vice-chancellors for example – to direct the detail of what Australian academics research, teach or say. Yet the historical chapters of Open Minds report many cases through the decades raising issues of ‘academic freedom’. People regularly see exceptions to this otherwise widely-supported idea.

In judging disputed situations first principles can help. Yet these are also the subject of disagreement and grey areas. Academic freedom is not a clear and unchanging principle but instead a practice that has evolved over centuries, originally as institutional autonomy from church and state, with the current idea of academics personally having freedom developing from the late 19th century.

Only this year, after Open Minds was published, have the precise words ‘academic freedom’ with a definition been inserted into university funding legislation. Until then, as the Open Minds chapter on law explains, the language was of ‘free intellectual inquiry’, with universities and regulators left to decide what that meant. Even this terminology is recent, dating from 2011 in funding legislation and accreditation regulation, with ‘free inquiry’ used from 2000 in national legal definitions of a university. Australia has had universities since the 1850s.

In public policy academic freedom has been part of Australia’s small-‘c’ constitutional order, general principles usually observed by lawmakers despite no formal requirement to do so. Every university is legally separate from government, unlike government schools or TAFEs. Most government research funding comes from block grants, which universities can spend as they decide, or project funding determined at arm’s length from government. Most teaching funding also comes from block grants. When the government tries to be more prescriptive it almost always faces significant criticism.

This criticism arises in part because of disagreements over the underlying purposes of universities. Over the last 30 years especially, numerous Australian government policies have aimed to steer university activity towards public purposes, as defined by the government of the day. Typically although not always this stops short of detailed direction; it is funding priority topics or creating incentives for research aimed at practical problems. But it runs against ideas of pursuing knowledge as an intrinsic value, as determined by academics.

Perhaps controversially, from the perspective of academics, Open Minds argues against giving priority to intrinsic interest arguments for the role of universities in producing knowledge, saying instead that a public good argument prevails. Historically, they are right that Australian universities have a ‘lasting practical and utilitarian bent’. They taught professional degrees from their earliest years. As a recent history of Australian universities showed, Commonwealth research funding began to further the practical purpose of fighting World War II. Research that aims to solve known problems, rather than pursue knowledge for its own sake, is a valuable part of what universities do.

But the public good argument has a complicated relationship with academic freedom. A former minister vetoed Australian Research Council recommended projects with titles such as ‘Soviet cinema in Hollywood before the blacklist, 1917-1950’ on the grounds that they did not represent value for taxpayers’ money. His decision outraged academics. But if the public good test is at the project level he had a point.

For the public good argument for academic freedom to work it needs to be at a system level. The argument is not that every research project or topic is in the public interest or even has much intrinsic intellectual value. Instead, the argument is that overall a decentralised system in which academics have significant discretion to choose topics, reach their own conclusions and disseminate their results, the core components of academic freedom, will outperform a more micro-managed system in producing knowledge. Much of this knowledge will be of public benefit, defined broadly rather than by the current government.

The word ‘academic’ qualifies the word ‘freedom’ rather than strengthens it. It is not a freedom that gives a person with an academic job the right to do what they want. Academics must work within discipline-level methods and standards, with this regulated via appointments, promotions and peer review.

One argument made in Open Minds is that academic freedom protects an activity, the pursuit of knowledge, rather than being an individual right of academics.

A focus on academic activity means that people who are not academics, including PhD students, research assistants and laboratory technicians can claim academic freedom protections for their academic work. In practice this is partial for non-academic university staff. Typically, they contribute to research projects chosen by their academic managers. Only occasionally are non-academic staff principal authors who take credit for published conclusions. But the logic of academic freedom as something that contributes positively to the production of knowledge suggests that all staff involved in academic work should be protected.

The activity of academic work includes dissemination of findings. But from a freedom of speech perspective, the word ‘academic’ again qualifies the word ‘freedom’. The fundamental purpose of the modern university is the search for more and better knowledge, not to provide a sanctuary for free speech. Academics have the same rights as anyone else to offer their views to others, but on subjects outside their expertise, which are not academic activities, academic freedom does not add to them.

Evans and Stone acknowledge that the American tradition of academic freedom includes a broad right to comment on public issues. But they say that it seems to rest on the ‘dubious assumption’ that academics have special rights or a special claim to wisdom. If academic freedom protects academic activity rather than academics, it doesn’t require universities to defend academics in their general public commentary.

The hard question for universities is whether they should discipline academics whose ‘extramural expression’ harms others or the university’s reputation. Pragmatically, the Open Minds answer is generally not. What is within an academic’s area of expertise is not always clear. The same statement can include material that is and is not the protected dissemination of academic findings. Policing these grey areas is hard. I would add that university reputations are partly protected by the perception that academics personally have academic freedom. They speak for themselves, not for their colleagues or the university as a whole.

Recent changes to the law of academic freedom are aimed at threats from within the universities themselves. As for the overall legal framework in Australia, academic freedom within universities has been a widely-held assumption, not something with strong foundations in clear and enforceable rules.

Universities have policies on academic or intellectual freedom, but with concerns about whether in practice they are over-ridden by ‘codes of conduct’ and other university policies. The most high profile ‘academic freedom’ issue of recent years, James Cook University’s sacking of Peter Ridd, is a conduct case.

Ridd wasn’t dismissed for his academic work but because of the impolite way he disagreed with his colleagues. Evans and Stone are cautious about requiring ‘civility’ or ‘collegiality’. They observe that ‘passionate advocacy and strong critique can be all too easily mistaken for incivility’. On the other hand, they say, criticism that turns into bullying or intimidation inhibits academic discussion, especially for junior academics with insecure employment. That undermines the academic activity that academic freedom is intended to protect.

The Ridd dispute will go to the High Court later in 2021. If he wins, it will be due to provisions of the university’s enterprise agreement with the National Tertiary Education Union. Open Minds notes that enterprise agreements are ‘perhaps the most important mechanism for the legal protection of academic freedom’. University policy changes flowing from changes to the law may make future Ridd-like cases less likely. But if they happen the enterprise agreement will probably remain the only way aggrieved academics can get their cases heard by an independent third party.

Evans and Stone are not against a model code on academic freedom and freedom of speech that the government wants universities to adopt. They describe it as a ‘good starting point’. But they are also clear, as was Robert French whose review of academic freedom and freedom of speech led to the model code, that laws and university policies can only do so much.

Universities cannot monitor the millions of interactions their academics will have every year, or endlessly adjudicate the fine lines between robust criticism and intimidation. Academic freedom is a practice that requires values to be internalised in university culture, and for academics to exercise judgment in how to behave. Civility is a good general value, but sometimes more forceful criticism can be justified or at least excused.

The culture of government is also important. Politicians and bureaucrats need small-‘c’ constitutional constraints on their decision making. While the overall historical record on this in Australia is good, recent policy changes are worrying. In a development that came too late for inclusion in Open Minds, new laws give the foreign minister veto power over arrangements with universities overseas that lack institutional autonomy. The reason for this is national security. Chinese universities and academics will be a particular focus.

National security threats are real. But giving a minister wide veto power over research projects is a major academic freedom issue. As I have argued elsewhere, broad ministerial discretion over universities is now common. While mostly not used to date in ways that undermine academic freedom, there are no legal barriers to this occurring in the future. The relevant legislation should be amended to ensure that this does not happen. It seems incongruous that the government believes academic freedom should be protected from universities but not from itself.

As an abstract concept academic freedom can be summarised in a short statement of principle, but as a practice it is a complex mix of culture and institutional design. Open Minds covers this complexity, highlighting the many ways academic freedom works in universities and the threats to it.

(This review is cross-posted at GoodReads.)