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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The first COVID-19 higher education support package – a revised, less speculative post

The government now has a first support plan for higher education. Its key elements are letting universities keep student-related grants and loans for 2020 even if they enrol too few students, funding short courses, and regulatory fee relief.

An earlier post was my inference and guesswork from fragmentary Easter Sunday announcements. This post uses material from FAQs issued by the Department of Education on Tuesday.  For readers who do not need to be across the technical detail of higher education funding I recommend my article for The Conversation rather than this post.

Commonwealth Grant Scheme

The government’s biggest higher education funding program is the Commonwealth Grant Scheme, which pays tuition subsidies of over $7 billion a year. Under the Higher Education Support Act 2003 total payments for the year cannot exceed equivalent full-time student numbers multiplied by the relevant Commonwealth contribution.

Universities are paid fortnightly based on estimates of their CGS entitlement for the year. A few days ago the University of Sydney announced that it was down 5 per cent on its domestic student target. Whether this is due to COVID-19 or tough NSW market conditions is not clear. A number of other universities were struggling before COVID-19 due to demographic factors.

Whatever the reason, universities will now be paid their original estimated funding rather than their legal entitlement. This also suspends the need to meet performance funding criteria, which is sensible. Read More »

The case for including for-profit higher education providers in the demand driven system

Reaction to the report of the demand driven review, which I co-authored with David Kemp, has been pretty positive overall. But our proposal to extend Commonwealth supported places to non-university higher education providers, especially those operated on a for-profit basis, is attracting some negative comment.

Professor Greg Craven, vice-chancellor of Australian Catholic University, said:

There is a basic psychological difference between a statutory body (university) ploughing money back into the enterprise and a private college whose modus operandi is to make a profit.”

Whether or not that is true, a higher education system needs to be robust to the weaknesses and variability of human motivations. Indeed, the public universities themselves are a case study in the limitations of a ‘just trust us’ model in higher education.

As the report discusses (pages 9-10 especially) the universities were for a long time, and still are to a lesser extent, able to get away with poor practices in teaching. This showed in the abysmal results of the first national student surveys conducted in the mid-1990s. Things have improved since through a combination of public information, government programs and incentives, market competition, and more recently regulation.

The report recommends that all these measures apply to the non-university providers as well. Indeed, they have another layer of scrutiny that the universities lack, which is that their courses need to be individually approved by the Tertiary Education Quality and Standards Agency. It also recommends extending the University Experience Survey to the non-university providers, and publishing the results on a replacement for the MyUniversity website to make it easier for potential students to compare courses. Read More »

Greg Craven on education and federalism, then and now

Greg Craven on state government control of education, 2007:

Despite a total lack of experience in education, it [the Howard government] has created Commonwealth Technical Colleges, tried to control state school curricula and muttered darkly about controlling state education systems.

Canberra has only been able to intrude because it has the money, not the authority. Perhaps it should leave the money and run. Is it really impossible to argue that an elected Victorian government has a genuine interest in the education of Victorian children and that – horror – it might even bring local insight to the process? …

The mantra “Trust me, I’m with the Commonwealth” has the plausibility of a four-dollar note.

Greg Craven on state government control of education, 2013:Read More »

Is the University of New England’s MOOC legal?

Update 21 February: UNE VC Jim Barber advises me that UNE Open students will not be enrolling at UNE, and that DIISRTE is ok with UNE Open. I still think that current regulation is poorly designed for innovation in higher education, but it looks like this venture is OK to proceed.


Original 20 February post:

Today the University of New England announced an innovative new way of delivering higher education. Inspired by the MOOCs, it plans to unbundle its higher education services.

…through a new platform called UNE Open, UNE will [] begin offering a range of postgraduate and undergraduate units through open courseware…..UNE Open will offer a range of fee-for-service products alongside the open courseware, including tutorial support, examinations and, ultimately, students may choose to have their learning recognized for credit into a UNE degree

Vice-Chancellor Jim Barber’s op-ed on his plans is here. I think this is an excellent initiative. But in offering its services this way, UNE is moving into uncertain legal territory.

Problem #1 is that under section 19-85 of the Higher Education Support Act 2003 universities are supposed to charge every student who enrols in a unit of study. They can offer ‘scholarships’ to bring the price back down, but that significantly complicates this ‘freemium’ model.

UNE can argue that the open courseware is not a unit of study, defined as a ‘subject or unit that a person may undertake with a higher education provider as part of a course of study’. Just studying the curriculum materials online could not lead to recognition as a unit in a course of study, but if students have the possibility of examination and academic credit then arguably it is a unit of study.

Perhaps UNE could create a legal workaround in which students don’t actually formally enrol, they just take the unit without enrolling. However, even this is skating on thin legal ice. At a course of study level, enrolled is defined to include ‘undertaking’ the course of study. Again, we hit the problem of the closer the ‘undertaking’ gets to academic credit the more it looks like an enrolment and something to which section 19-85 applies.

Problem #2 is that under section 36-55 of HESA 2003 there is a floor price of the highest student contribution amount for a Commonwealth-supported student unless the student could not have enrolled as an award (ie degree) student. I’m not sure how this provision is intended to be applied. People already enrolled in degrees at UNE for which the unit in question is relevant are covered I think, but it seems to cover a broader group: anyone who might have been admitted. So if your ATAR was very low you can get a discount, but if your ATAR was high you can’t? Sorting out who falls within section 36-55 and who does not would be complex, and undermine a simple open enrolment model.

Problem #3 is that HESA does not support the unbundling of charges into separate components. Section 19-100 reads

A higher education provider must not charge a person a fee for a course of study that exceeds the sum of the person’s tuition fees for all of the units of study undertaken with the provider by the person as part of the course.

I think this makes it difficult to offer cheap, stripped down versions of units and then charge more later for examinations or academic credit.

A literal reading of section 19-90 suggests that UNE could have multiple different fees charged at enrolment depending on level of service. But that wasn’t the intention of the legislation – as I recall it, the purpose of this provision was to allow different cohorts of students to be charged different fees for the same bundle of services (for example, students who enrolled in a course at different times could be charged different amounts). And it undermines a key flexibility of the stated UNE model: that students can decide as they go what level of service they want.

I hope my reading of HESA is wrong, or that UNE can drive its open courses through the loopholes. But Australia’s system of higher education funding and regulation was designed to support an homogenised higher education service. It is poorly equipped to deal with innovative higher education business models. That the system is an obstacle to premium higher education services has long been well understood. But with UNE’s proposal, we are starting to see how it is also an obstacle to discount higher education.

More detail here.

Australia’s university with no courses or students

In October 2011, the for-profit Laureate International Universities group announced that it was opening a new university, Torrens University Australia, in Adelaide. Back then, I commented that it was just in time – that it was using provisions for new universities that were to be abolished under the new standards system enforced by TEQSA.

My comment about it being just in time for a while seemed premature, as when the TEQSA register of higher education providers was created in early 2012 Torrens was not there. The problem seems to have been that though there were transitional rules putting all existing higher providers on the register automatically, the definition of ‘higher education provider’ in the TEQSA legislation referred to an organisation offering or conferring a higher education award. As Torrens did neither, it was not automatically transitioned to the register.

That created significant problems, as the rules on creating new universities make it very difficult for this to ever occur. To become an Australian university, it is necessary to offer undergraduate and postgraduate degrees, including PhDs, in at least three broad fields of study (a specialist university can have one field – MCD University of Divinity is the only example). It is also necessary undertake research leading to ‘the creation of new knowledge or original creative endeavour’ in those three fields.

A version of these rules has been in place since 2000, and unsurprisingly no new Australian university has commenced operation since. Our existing private universities would not have met them in their earlier years, and Notre Dame is still only just likely to qualify (three fields of study get a rating in the Excellence in Research for Australia exercise). With restricted public research funding eligibility, few organisations can fund the loss-making research needed to qualify as a university.

It seems like a regulatory workaround was created in June, though I (and it seems most other people) missed it at the time. A new regulation was created retrospectively allowing higher education providers registered but not operating to be included in the transitional arrangements. So Torrens University now appears on the TEQSA National Register (and also has a website promising a 2014 start). It is Australia’s 40th full university, albeit one with no students or courses.

Torrens University is registered until the end of 2017, so it has five years to meet the three field of study course and research requirements. While drawing on foreign resources is the most plausible way a new university could be created, I’m not sure why a for-profit like Laureate would devote large sums of money to activities that are unlikely to deliver financial returns. If Torrens does not meet the threshold three fields, there will be a messy situation in which the regulator tries to strip an institution, its students and its graduates of the ‘university’ title. Perhaps they are hoping that between now and then the government will take a more flexible view of what constitutes a ‘university’.

The pattern of growing information regulation

There has been plenty of negative comment on the Finkelstein review proposal to impose federal regulation of the media. But so far as I have seen this commentary has not focused on how it fits a pattern of increasing central regulation of, or proposed regulation of, information flows in Australian society. Further examples here:

* National curriculum. One of the oddities of Australian political culture is that we have always – and the negative reaction to Finkelstein suggests still – been sceptical of government media regulation, but quite unconcerned about government control of what is taught to the young people who must attend school for 10 to 12 years. Many complain about the content of that curriculum – but think that the wrong people are in charge, not that there is too much centralisation of curriculum in the first place.

* The mechanism now exists for the federal minister of education to impose ‘teaching and learning standards’ that could control what universities teach.

* While the federal proposals for controlling 3rd-party opposition to the government are much milder than the draconian NSW regime, it’s highly likely that we will see more controls introduced during the current parliament. Was Wayne Swan’s speech today softening us up for banning billionaires from buying media space when the government attacks them?

* Senator Conroy’s internet filter seems to be on hold, and while not aimed at political speech it would create a mechanism for regulating it at a future time.

Overall, I think technological changes mean that we are in a better free speech situation now than 15 or 20 years ago. It is important to keep things in perspective. But it is hard to see that the at best very minor gains from the proposed or actual centralisation of information control in Canberra are worth the risks.

A proposal to politicise university curricula

In this morning’s Australian, I am reported criticising some recommendations of a Universities Australia report on ‘Indigenous cultural competency’.

The report contains examples of things universities are doing to better serve their Indigenous students or give other students knowledge they may need when working with Indigenous people. All this is within the scope of what universities should be doing to educate their students and prepare them for their professional lives. Unfortunately, the report’s recommendations go well beyond necessary, reasonable or desirable initiatives to a much larger political agenda. Consider the first three recommendations in the section on teaching and learning (emphasis added):

Recommendation 1: Embed Indigenous knowledges and perspectives in all university curricula to provide students with the knowledge, skills and understandings which form the foundations of Indigenous cultural competency.
Recommendation 2: Include Indigenous cultural competency as a formal Graduate Attribute or Quality.
Recommendation 3: Incorporate Indigenous Australian knowledges and perspectives into programs according to a culturally competent pedagogical framework.

The ‘all’ in recommendation 1 is a step too far. There are no Indigenous ‘knowledges and perspectives’ on much of what is taught in universities, if by that we mean their traditional knowledge. If it means the ‘knowledges and perspectives’ of modern Indigenous background people, then it is hard to see why these deserve a place in the curriculum (even if academics perhaps need to know what some of their Indigenous students might believe). Nobody has any special insight just because of their ethnic background. At least in theory, the modern university rejects any such claim to authority. Knowledge and theories have to stand on their own, regardless of who advocates them.Read More »

A new private uni, established just in time

The American for-profit university conglomerate Laureate International Universities is to open a campus in Adelaide, to be known as Torrens University Australia. (An earlier, detailed description of the proposal is here (big pdf).

Universities Australia, the lobby group for current universities, said that it would be pleased to consider an application from Torrens. But it added:

“However, Universities Australia is surprised that the South Australian Government has made this decision prior to the Tertiary Education Quality and Standards Agency beginning its regulatory functions in January 2012.”

Actually, it is not very surprising at all. The proposed rules for admitting new universities under the TEQSA regime make it extremely difficult to become a university. At best, it would be a slow, evolutionary process for another kind of higher education provider to become a university. The biggest obstacle is that to be approved as a full university, research activity is required in three broad fields of study. Not many institutions can sustain loss-making activities across such a range.

The current protocols for approving new universities are also quite protectionist. But there
is a provision in the protocols on ‘greenfield’ universities that have a ‘high probability’ of meeting the general criteria for being an Australian university. That’s what Torrens and the SA government are using, before this option is closed off by TEQSA rules.

I fear TEQSA is going to bury higher education in red tape, so I am pleased that this new competitor was allowed in before they get the chance to stop it.