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.

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The ‘model code’ on academic freedom and freedom of speech and higher education law

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.

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Academic freedom as a principle and a practice (a review of Open Minds: Academic Freedom and Freedom of Speech in Australia)

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.

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Recurrent critiques, concerns and crises in Australian higher education

In a previous post on Gwil Croucher and James Waghorne’s Australian Universities: A History of Common Cause, I noted a range of significant changes in Australian higher education over the last century. This post looks at recurrent themes.

Debate about the purpose(s) of the university

From the start Australia’s universities served multiple purposes, with on-going tensions between knowledge for its own sake, typically most strongly supported by academics, and meeting practical needs, typically most strongly supported by governments.

At the 1920 meeting that Croucher and Waghorne mark as the start of a national organisation of universities, University of Sydney Chancellor Sir William Cullen warned against ‘adopting too enthusiastically the current preoccupation with ideas of “national efficiency”‘.

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What are the academic freedom laws that Pauline Hanson wants?

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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Universities should have a Commonwealth funding floor

Update 27/8/20: A funding floor has now been inserted in the Job-ready Graduates bill, albeit with some remaining issues.

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As expected, the legislation for Dan Tehan’s higher education policy would formally repeal the Higher Education Support Acts bachelor-degree demand driven funding provisions, with a small exception for regional Indigenous students.

Funding for Commonwealth supported bachelor degree students has been capped since the end of 2017, so this might seem like just a formality. But in reality the repeal involves a major structural change, one that could undermine important higher education policy objectives.

Even though section 30-27(1) of HESA 2003 created a power to cap, section 30-27(3) required that the capped amount be at least the previous year’s funding level. The only way that a university could get less money than the previous year was by enrolling too few students, reducing their payment under the demand driven funding formula (section 33-5(5)). In effect, the link to previous Commonwealth payments created a funding floor that the government could only lower with parliamentary approval.

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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’).Read More »

Do students have academic freedom? (And other issues with the proposed legal definition of ‘academic freedom’)

The Government is planning to amend the Higher Education Support Act and the Tertiary Education Quality and Standards Agency Act to strengthen campus protections of academic freedom and freedom of speech. Last week it released for consultation a new legal definition of academic freedom.

While I strongly support freedom of speech and academic freedom (and have a newly-acquired personal vested interest in academic freedom), I have reservations about the proposed definition.

The French review of freedom of speech in Australian higher education, which is the basis of the proposed amendments, recognised that freedom of speech and academic freedom are related but distinct concepts. But the proposed legal definition blurs them.Read More »

Universities might still be caught in the campaign finance net

A Commonwealth campaign finance bill introduced late last year was strongly opposed by the university and broader NGO sectors. Most organisations commenting on a federal political issues were going to have to report on their donations and implement  highly bureaucratic systems to prevent ‘foreign’ donations to political causes. The bill would also have affected think-tanks such as the Grattan Institute, where I work.

The bill’s overly broad definition of political activity — public expression of views on an issue in an election by any means and/or public expression of views on a political party, MP or candidate by any means — was a longstanding problem in the law. I wrote a paper about it nearly a decade ago. Compared to the existing rules, the bill slightly improved on the status quo by creating some exceptions, including expressing views solely for genuine academic purposes. But in practice, the new campaign finance regulations were likely to lead to a much worse state of affairs than now.

Under the old regime, the AEC did not enforce the letter of the law.  Only organisations engaged in traditional campaign activities ever complied, and nobody was punished for not submitting the required reports on political expenditure and donations. During debate over the government’s bill it became clear that many NGOs in technical breach of the current law had no idea that it existed. But now they know, and MYEFO gave the AEC extra funds to implement the government’s ‘electoral integrity reforms’. That money could be used to increase compliance.

After near-unanimous opposition to its original bill, the government released a draft revision for comment. This seems to have satisfied Universities Australia, but I am not convinced that, despite its improvements, that universities should support the bill in its current form. Read More »

Ministers should not choose research projects

Senator Kim Carr has been around forever, and knows what questions to ask in Senate Estimates. And yesterday he got the Australian Research Council to reveal that, last year, then education minister Simon Birmingham rejected 11 humanities grant recommendations. So far as we know, this hasn’t happened since Brendan Nelson was minister in the middle of the last decade (Gideon Haigh tells that story well).

As with the Nelson intervention, Birmingham’s decision has prompted outrage. The Australian Academy of the Humanities says that “this interference is entirely at odds with a nation that prides itself on free and open critical enquiry.”

Birmingham’s response is, in effect, that the rejected projects are not worth funding. On Twitter, he says “I‘m pretty sure most Australian taxpayers preferred their funding to be used for research other than spending $223,000 on projects like ‘Post orientalist arts of the Strait of Gibraltar.'”

He could have picked several other examples: “beauty and ugliness as persuasive tools in changing China’s gender norms”, “music, heritage and cultural justice in the post-industrial legacy city” or “Soviet cinema in Hollywood before the blacklist, 1917-1950”.

But that Australian taxpayers were probably not going to get value for money from these very niche projects is not the same as an argument for rejecting an ARC recommendation. Read More »