In his speech to the Universities Australia conference yesterday, Education Minister Alan Tudge expressed frustration that some universities had still not, after 26 months, complied with the model code on academic freedom and freedom of speech devised by Robert French. He told delegates that:

If it becomes apparent that universities remain unable or unwilling to adopt the Model Code, I will examine all options available to the Government to enforce it – which may include legislation.

This post updates an earlier one on the relevant law and legal options around academic freedom and freedom of speech. It argues that, at this point, the government cannot legally require full implementation of the model code. Additional legislation is therefore needed.

A policy on academic freedom and freedom of speech

The most important legal change since my summary last September is that the Higher Education Support Act 2003 has been amended to remove a requirement for universities to have a policy on the undefined concept of ‘free intellectual inquiry’ and instead have one on ‘academic freedom and freedom of speech’. The amended section reads:

19‑115  Provider to have policy upholding 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.

Table A means the public universities, Table B is the other universities. The amendment also includes a definition of academic freedom:

academic freedom means the following:

                     (a)  the freedom of academic staff to teach, discuss, and research and to disseminate and publish the results of their research;

                     (b)  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;

                     (c)  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;

                     (d)  the freedom of academic staff to participate in professional or representative academic bodies;

                     (e)  the freedom of students to participate in student societies and associations;

                      (f)  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.

This is a revised version of the definition of academic freedom that appears in the French review. It does not, however, include all the issues covered in the model code.

The legislation only covers academic staff and students, so not other university staff or visitors to the university campus – a little surprising, given that the attempted silencing of Bettina Arndt during her university visits was one of the triggers for the French review. The model code does cover these groups, with one of its objects being ‘to ensure that the freedom of lawful speech of staff and students of the university and visitors to the university is treated as a paramount value’. But the code itself has no legal standing.

Because the legislation only picks up part of the code, it gives freedom of speech a narrow definition. It applies to staff and students expressing opinions on their own higher education provider or ‘in relation to their subjects of study or research’, and not their views on other matters, including other universities. For academics in clause (a) there is a reference to a freedom to ‘discuss’, but an overall contextual reading of that sub-section suggests that it applies to their scholarly activities and is not a general freedom of speech provision.

The minister is legally entitled to require universities to have a policy covering points (a) to (f) in the academic freedom definition above. He can also require them to have a freedom of speech policy as per section 19-115, but I think has no legal grounds for insisting that it complies with the detail of the code.

What happens if a university does not have an academic freedom and freedom of speech policy?

Section 19-115 is one of HESA 2003‘s ‘quality and accountability’ requirements. Section 36-60 makes meeting the quality and accountability requirements a condition of receiving Commonwealth Grant Scheme funding.

Section 54-1 says the minister can reduce or require the repayment of CGS grants, Indigenous assistance grants, other grants (mainly research and equity) grants or scholarships in the event of a breach of a condition of grant. The grant reduced does not need to be the grant with breached conditions.

Section 54-5 sets out factors the minister may consider, such as whether the breach is major or minor and its effect on students.

Sections 57-1 and 57-5 require the minister to determine in writing the amount of the reduction or repayment.

Under section 60-1 a university must be given notice of the proposed penalty and the reasons for it, and has 28 days to dispute the decision and/or the level of the penalty.

This is not a reviewable decision by the Administrative Appeals Tribunal (section 206-1) but it may be subject to Federal Court challenge under general administrative law, for example that the penalty was for a claimed breach that went beyond the legal requirements of HESA 2003.

Three of the Table B universities don’t receive any CGS funding and, in the absence of any specific conditions in the grants they do receive, they cannot be penalised under this provision.

There is also a nuclear option under section 22-15(1)(a)(ii) of HESA 2003, which allows for revocation of approval as a higher education provider for breaching a quality and accountability requirement. There are similar process requirements as for financial penalties. However under section 22-20(3A) a revocation is a legislative instrument, which means that it can be disallowed by either house of parliament. It almost certainly would be disallowed if the breach was just of section 19-115, and so this is very unlikely for a major university.

The provider category standards

When the previous minister first announced his intent to change the law on academic freedom and freedom of speech there were two elements – the changes to HESA 2003 discussed above, and to the provider category standards (now the threshold standards) that define the legal requirements of being a university or a non-university higher education providers (now categorised as university colleges and institutes of higher education).

The minister criticises universities for dawdling for 26 months on the model code, but the government itself is only a couple of days short of a 26 month delay on revising the standards. The standards still have the old language of ‘free intellectual inquiry’ and ‘freedom of intellectual inquiry’.

The threshold standards could be revised to expressly refer to academic freedom and freedom of speech. The standards are a legislative instrument, and so also subject to disallowance.

If the language was changed without other substantive amendment, TEQSA would have to 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’.

This obligation on the governing body has wider legal implications than a pro forma academic freedom and freedom of speech policy as required by HESA 2003. It would require TEQSA to check that such an environment exists.

Once the new definitions were inserted it is possible that the minister would direct TEQSA to use the model 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. 

What happens if a university does not have an environment of academic freedom and freedom of speech?

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 now, but due to be indexed) 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. 

Reporting on freedom of speech

The minister’s speech also said that:

the government will be expecting universities to report annually on how freedom of speech issues are being managed against the Code. A template statement is being developed by the University Chancellors Council, led by Stephen Gerlach. The expectation is that this would be included in annual reports each year.

There is more detail on the this proposal in the government’s response to Sally Walker’s review of university compliance with the model code.

The government had already been requiring something like this through the mission-based compacts universities must have under section 19-110 of HESA 2003. Some universities submitted compacts with the template instructions left in (eg Macquarie) so we can see what they were asked to submit (‘how the university has responded to the French Review recommendations to adopt the Model Code on free speech and academic freedom’).

The minister can require, under section 19-70 of HESA 2003, that higher education providers deliver information related to a) the provision of higher education by the provider; and b) compliance by the higher education provider with the requirements of the Act.

Section 19-70 could definitely be used to require universities to submit their policies on academic freedom and freedom of speech. However, it is not clear that it could be used more broadly to mandate reporting on freedom of speech ‘issues’ or how they relate to the code. The problem remains that the code has no legal status in itself, only the parts of its wording now enacted in HESA 2003.

New legislation

The minister’s reference in his UA speech to ‘new legislation’ may be alluding to omissions in the freedom of speech legislation passed earlier this year.

Whatever the minister meant new legislation is needed. The pressure on universities to implement the model code, on display again yesterday, is part of a pattern of the government acting without, or without sufficient, statutory authority. I have raised this issue several times in relation to the funding agreements. The decline of the rule of law in higher education policy is a serious problem, quite independently of the merits of the policies being pursued.