What can the government do about student associations and free speech?

The Australian this morning reports that ‘Education Minister Alan Tudge is considering cutting off funding to student organisations that ­attempt to stop the airing of views they oppose on campus.’ The trigger is an issue with the ANU student association, and whether an anti-abortion group and the ADF should be able to set up stalls at the association’s market day.

As is usual in these cases, the facts are not entirely clear. The student newspaper Woroni quotes the student association’s social officer as saying the groups were excluded. But the association told The Australian that the groups did not apply and therefore no application from them has been rejected.

Either way, ‘Mr Tudge told The Australian he was considering ways to block student unions that impede free speech from taking compulsory student fees which fund their services on campus, and tying them to a model code of free speech that now applies only to university administrators and staff.’

How can student unions be regulated?

As the minister’s statement acknowledges, if a student union is a separate legal entity to the university it is not automatically covered by the academic freedom and freedom of speech definitions added to the Higher Education Support Act 2003 earlier this year. The government may try to extend freedom of speech provisions to student unions.

The current freedom of speech law is based on applying conditions to grants rather than direct regulation. As student unions don’t receive grants this mechanism cannot be used for them.

While the government does not directly fund student associations, this year the Commonwealth has lent students about $130 million through the SA-HELP scheme to pay their amenities fees.

There is no current power to attach additional conditions to SA-HELP loans, but this could be considered.

After the High Court’s broad interpretation of the Constitution’s corporations power in the WorkChoices case, an increasing number of HESA 2003 provisions apply regardless of funding. Direct regulation of student unions is probably legally possible in a way that it was not in earlier years.

The closest precedent in HESA 2003 for a policy response is an existing provision requiring universities to impose conditions on recipients of student services and amenities fees. Section 19-38 sets out how money raised using these fees can be spent. Controlling other actions of student associations would be a significant additional step, but less radical than the other options.

The current freedom of speech laws

Even if freedom of speech laws were widened to include student unions, the current definitions do not fully cover the ANU situation.

Student freedom of speech is only covered in two cases, ‘in relation to their subjects of study and research’ and ‘in relation to the higher education provider in which they … are enrolled’.

But perhaps more relevantly to this case, the definition also includes ‘the freedom of students to participate in student societies and associations’. The anti-abortion group is likely to be covered, provided it is student led rather than an organisation just trying to recruit members at the university. The ADF, however, is not a student society or association, although university-specific regiments at some institutions might be included.

Are there other legal remedies?

As is common in this area, the idea of ‘free speech’ struggles to summarise the underlying intuitions. Freedom of speech does not in itself include the right to be provided with a platform or to be published.

By coincidence, a similar case at QUT was also reported today as being resolved, after legal action under anti-discrimination law, with an apology.

Student groups based on protected characteristics under anti-discrimination law may be able to use this if they are excluded. In many cases this would more accurately reflect the nature of the problem than a violation of free speech.

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