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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University-Commonwealth funding agreements and the rule of law in higher education

The 2021-23 funding agreements between universities and the government, the first of the Job-ready Graduates era, were put on the DESE website earlier this year. In this post I compare them to the pre-JRG agreements.

My main concern is that the funding agreements are being used for matters that should be based on clear legal rules, not DESE discretion based on a one-sided ‘agreement’.

My concern reflects both the general political principle that policy decisions should be subject to parliamentary scrutiny and the practical problems caused by lack of certainty. Important funding conditions or criteria are not included in any legal document and DESE is given wide scope to interpret vague terms.

A broader scope

The most immediately obvious change is that the new funding agreements include more content than previously. They contain an overall summary of Higher Education Support Act 2003 institutional funding, including the Commonwealth Grant Scheme (CGS) funding that is the legal purpose of the funding agreements; rules around course closures, professional training, and the provision of information on costs and admissions; research, engagement and equity funding; and some background information and principles. The research, engagement and equity material is new and derives its legal standing from separate legislative instruments.

Putting key information in one place is helpful, and I would encourage the government to collate the summary funding tables combining teaching, research, equity and engagement funding for each university into a publication. But funding agreements with parts of varying legal status are not desirable. A mixed document makes it less clear for universities what they must do according to law and what is just the government/Department taking advantage of the sector’s culture of compliance. With such a large share of their income depending on their funding agreement, universities are reluctant to push back against the government’s demands.

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The complexities of new student places (again)

Tuesday’s Budget announced two lots of funding for new student places, for short courses and for ‘national priority’ courses. But in the complex Job-ready Graduates funding system it is hard to work out what will really happen. As with other policies that are intended to create new places, it is not clear that there is a financial incentive to increase enrolments.

The difficulties of introducing new money into a transitioning system

Between them, the two new allocations total about $550 million over the next four years, with the short course money lasting for two years.

The question is how this relates to the Job-ready Graduates transition fund. This fund is designed to leave universities with the same Commonwealth student-related funding for the next three years as if JRG had never happened.

The draft Commonwealth Grant Scheme Guidelines released at the end of last month set out how the transition fund will work. The Guidelines have several unclear and seemingly contradictory elements, which I discuss in a footnote.* But this is the basic formula for transition funding:

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Can universities just close loss-making courses?

As international student fee revenues fall universities are closing loss-making subjects and courses. Musicology at Monash. Maths and gender studies at Macquarie. Arts and social science subjects at Sydney. Neuropsychology at La Trobe.

Generally, universities have significant autonomy over what they teach. Changes in courses and subjects occur every year, in good as well as bad economic times.

But the funding agreements universities sign with the government impose some controls over course closures.

For courses leading to occupations deemed to be experiencing a skills shortage, and subjects teaching ‘nationally strategic’ languages, universities have to get government approval prior to closure.

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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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Notes on the Job-ready Graduates bill, as introduced

The Job-ready-Graduates bill was introduced in the House of Representatives this morning. A couple of points on the funding floor and the social work/mental health deal with the National Party:

Funding floor

One unpleasant surprise in the draft Job-ready Graduates bill of earlier this month was that, with each funding agreement, the minister could reduce a university’s funding without parliamentary scrutiny or approval.

The bill as introduced has a clear fix of this problem – but from 2025: amending section 30-27(3)(b) of the Higher Education Support Act 2003 (HESA 2003). From then, the minister cannot reduce the university’s maximum basic Commonwealth Grant Scheme funding for higher education courses below what it was the previous year.

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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 students lose Commonwealth support for failing too many subjects?

My previous post explained various measures proposed in new government legislation to reduce how many students fail subjects. These include restrictions on marketing to students who may not be serious, a new Departmental power to not pay universities for subjects if the student is deemed not ‘genuine’, a requirement that universities refund student contributions or fees where the student is not genuine, a new obligation to check the student’s academic suitability at the subject as well as the course level, and restrictions on students taking more subjects in a year than they can manage.

Most of yesterday’s media attention, however, focused on a different part of the legislation, restricting Commonwealth Grant Scheme and HELP entitlements for students who fail too many subjects.

In explaining this change I am, as with the previous post, going to cite legislative provisions to help people who are working on providing feedback on the bill. HESA 2003 means the Higher Education Support Act 2003. As before, please feel free to point out errors or alternative interpretations in comments or via email.

General rule – failing more than half of subjects leads to loss of funding entitlements

The general rule is that students who fail more than half their subjects in a course will lose their entitlement to Commonwealth support: new section 36-13 of HESA 2003 for Commonwealth supported students, for FEE-HELP students existing section 104-1A activated by schedule 5 part 2 of the draft legislation. At public universities, FEE-HELP borrowers are mainly postgraduates, as they cannot offer undergraduate full-fee places except in narrow circumstances.

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Checking that students are on track to pass – the government’s proposal

My previous post argued that some university students needlessly incur HELP debts and fails on their academic record. This post looks in more detail at several measures proposed in new legislation to alleviate this problem.

Although these measures arrived without warning they have a history. With some amendment and addition, they extend to public universities rules applying to non-university higher education institutions since the 2017 provider integrity legislation. In turn the 2017 non-university provider legislation imported vocational sector rules intended to avoid a repeat of the VET-FEE HELP debacle.

Provider marketing and student motivations

The issues in VET FEE-HELP and higher education are, however, quite different. The offering of inducements, misleading statements about HELP, and cold calling that would be restricted or banned for public universities by the new legislation never or rarely happen in higher education.*

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The legal paperwork for undergraduate certificates

Update 24/07/20: The Commonwealth Grant Scheme Guidelines discussed below have now been amended, including 16 NUHEPs that did not previously receive Commonwealth supported places.

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Back in May, I posted on concerns about the legal issues surrounding the new ‘undergraduate certificates’, the half-diplomas announced as part of the Easter Sunday COVID-19 measures. One issue, listing on the Australian Qualifications Framework, was being remedied as I wrote.

Earlier this month, the government ‘designated’ the undergraduate certificates under secton 30-12 the Higher Education Support Act 2003. This has two practical implications.

First, it means that the source of Commonwealth Grant Scheme funding (if any, more soon) for undergraduate certificates moves from the bachelor degree to the sub-bachelor and enabling fund.

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