06 April 2019

Free Speech in Australian Higher Education Institutions

The report by former High Court Chief Justice the Hon Robert French AC, foreshadowed here,  suggests that Australia is not experiencing a crisis of free speech on university campuses.

French comments
Reported incidents in Australia in recent times do not establish a systemic pattern of action by higher education providers or student representative bodies, adverse to freedom of speech or intellectual inquiry in the higher education sector. There is little to be gained by debating the contested merits of incidents which have been the subject of report and controversy. Nevertheless, even a limited number of incidents seen as affecting freedom of speech may have an adverse impact on public perception of the higher education sector which can feed into the political sphere. And as the Joint Committee on Human Rights of the House of Commons and the House of Lords observed in its report in March 2018, they may have a ‘chilling effect’ on the exercise of freedom of speech in some places. 
The emphasis in this Review has been upon the statutory framework and Standards applicable to higher education providers and their rules and policies, which may affect freedom of expression and academic freedom. Also relevant are constraints on freedom of expression and academic freedom arising out of employment terms and conditions in the higher education sector and constraints imposed by collaborative arrangements with third parties and conditions attaching to major donations. 
Constraints upon freedom of speech under the general law often require difficult judgments about which reasonable minds may differ. Laws affecting freedom of speech, both by way of protection and qualification of the freedom, often use rather general language. Its application can create challenges for administrators and law enforcement agencies and ultimately by courts. In the case of the domestic rules and policies of higher education providers the broader the terminology used to describe the circumstances in which expressive conduct can be constrained, the wider the potential application of constraints and the greater the risk of overreach even if resulting from ad hoc decisions short of a systemic approach. 
Many of the higher education rules and policies mentioned in the Report use broad language capable of impinging on freedom of expression. They have been outlined in the preceding sections of this Report. One example from among many, but not atypical, is a Discipline Rule, which defines ‘misconduct’ to include conduct that ‘demonstrates a lack of integrity or a lack of respect for the safety or wellbeing of other members of the University community’. It extends that definition to conduct that is otherwise:
(i) a contravention of the values set by the Council for the University; or 
(ii) prejudicial to the good order and government of the University; or 
(iii) reprehensible conduct for a member of the University community to engage in.
Specific instances of misconduct are set out in the Rule. They include behaving in a way to another member of the university community which creates a hostile study, research or work environment. The terms ‘lack of respect’, ‘prejudicial’ and ‘reprehensible’ are wide. That is not to say that they have not been and are not being sensibly administered. However, it does not require much imagination to apply them to a considerable range of expressive conduct. 
Terminology of that kind, when used in statutes or in the common law, fits into what Professor Julius Stone described as ‘legal categories of indeterminate reference’. They allow ‘a wide range for variable judgment in interpretation and application approaching compulsion only at the limits of the range’.  Courts, in applying such language generally, operate within parameters established by long-standing practice and precedent coupled with a degree of visibility in relation to their decision-making. Even then their decisions can involve contestable and not always visible normative choices. Administrative application may be informed by more variable and less visible perspectives. 
That kind of terminology in rules and policies, which may affect expressive conduct, is rife on university campuses in Australia. It makes the sector an easy target for those who would argue that the potential exists for restrictive approaches to the expression of contentious or unwelcome opinions or opinions which some may find offensive or insulting. The potential for overreach tending to erosion of important freedoms equates to a non-trivial risk of that erosion. The risk can never be eliminated but it can be reduced by appropriately limiting language in higher education rules and policies. Beyond that measure, a determining factor will be the culture of the institution. A culture powerfully predisposed to the exercise of freedom of speech and academic freedom is ultimately a more effective protection than the most tightly drawn rule. A culture not so predisposed will undermine the most emphatic statement of principles. The recitation of a generally expressed commitment to freedom of speech and academic freedom does not of itself provide strong evidence of the existence of such a culture. 
Given their nature and diversity and the range of subject matters upon which they touch, an immediate global review of all higher education provider rules or policies to narrow their application to freedom of speech and academic freedom would be like cleaning the Augean Stables. For this reason, it is recommended that higher education providers adopt at least umbrella principles operationalised in a code applicable to cases in which freedom of speech and academic freedom may be in issue. It is not proposed that such a code be enacted as a species of delegated legislation. Not all institutions have the power to make delegated legislation. As a non-statutory code it would be applied to guide the exercise of powers and discretions, formal and informal, when their breadth allows for its application. Essentially, its purpose is effectively to restrain the exercise of overbroad powers to the extent that they would otherwise be applied adversely to freedom of speech and academic freedom without proper justification. 
The development of a common voluntary code is not a novel proposition. In January 2018 in testimony to the Joint Committee on Human Rights of the House of Commons and the House of Lords, Sir Michael Barker, Chairman of the Regulator, the Office of Students, said that some codes of practice in the higher education sector, designed to preserve free speech, are too complicated and too bureaucratic. It was not up to the Office of Students to come up with a model code. He said however:
I do not think you need any government related agency making single codes of practice on freedom of speech. It feels altogether wrong. However, if university leaders and students’ unions got together and came up with a simplified code of practice, that might be a very good idea.
In February 2019, the Equality and Human Rights Commission of the United Kingdom, following a collaborative exercise with the sector, published a common guide for higher education providers, outlined earlier in this Report. That guide provides an approach to the discharge of statutory duties relating to freedom of speech in the sector in the UK. It also has relevance for Australia even without equivalent statutory obligations. 
A model code embodying a set of umbrella principles could be adopted, with or without modification, by individual institutions. It could also be adopted across the sector. Such a code is likely to enhance the authority of the sector in its self-regulation in this important area. It could also give rise to a body of experience in its application able to be developed and shared as a sector-wide resource. Given the importance of freedom of expression as a cultural and constitutional value in our society and to the proper functioning of higher education providers themselves, any such code must lean powerfully against limitation of the freedom by reference to the content of speech. It should cover academic freedom particularly those aspects of it which relate to freedom of expression and freedom of intellectual inquiry as well as the protection, at least within existing limits, of institutional autonomy. The code should also be at least a relevant consideration in the negotiation of enterprise bargaining agreements, employment contracts, collaborative arrangements with third parties and the conditions upon which major philanthropic gifts are accepted. 
Any code or principles must acknowledge the limits on speech imposed by the law and those limits which can be justified as necessary to the higher education provider’s mission. That mission includes responsibility for the maintenance of scholarly standards in teaching, learning and research. It includes the provision of effective teaching and learning experiences which may require conventions and practices about mutual communication between students and teachers, and between students in classroom or learning spaces, including digital learning spaces. Any code or principles must also allow for compliance with the institutional duties of care at common law and duties which are imposed by statute, including the HE Standards relating to equitable treatment of students and staff, and the fostering of their wellbeing. Suitably framed diversity and inclusion policies are no doubt referrable to those HE Standards but should be conservative in their application to expressive conduct. 
Any code or statement of principle should be framed in the recognition that it is concerned with an academic institution. A particular aspect of that distinctive character may be the institution’s responses to visits by off-campus speakers. The question may be asked whether a higher education provider should be obliged to host any intellectual rubbish that wants to cross its threshold. There is certainly an abundance of it. The challenge in this area is that sometimes one person’s intellectual rubbish is another’s profound wisdom. What is intellectual rubbish today may be received wisdom tomorrow and vice versa. In 1950, Bertrand Russell wrote an essay entitled ‘An Outline of Intellectual Rubbish’. In that category he included the attribution of value to gold, and the notion that Aristotle was wise. Some, of course, may see positive benefit in exposing students to the proponents of intellectual rubbish, including racist opinion, so as to better identify it, understand how it is propagated and how to challenge it effectively. The EHRC Guide in the United Kingdom offers some useful, practical advice in that respect. 
There is difficulty in drawing a line around the concept of ‘intellectual rubbish’ as much as there is in drawing a line around the concept of a resulting ‘harm’ which would warrant refusing entry to a speaker. Some refusals seem reasonable and essentially uncontroversial, at least where ideological perspectives are not involved. In 2017, Edith Cowan University rejected a facility hire application by an organisation proposing to hold a seminar on its campus related to ‘Pranic crystal healing’. Following letters of concern from members of the public the university conducted inquiries into the organisation and the content of the seminar and determined that the seminar did not align with the university’s evidence-based approach to teaching and research in dietetics and was inconsistent with its research activities in that discipline. 
There are cases in which there may be strong ‘harm’ arguments for not providing a platform for the lawful expression of an opinion. As a matter of general principle, the class of speech to be characterised as ‘harmful’ for the purpose of a model code should be as small as possible and, by its very definition, offer justification for the imposition of a restriction. None of the above is inconsistent with the determination of priorities by a higher education institution for the purpose of deciding who will be permitted to use its facilities. Nor is it inconsistent with a higher education provider applying priorities governing the extent to  which it will bear costs associated with the conduct of any event involving an off-campus speaker. 
The Terms of Reference of this Review require consideration of existing statutory Standards with respect to their ‘effectiveness’. The term ‘effectiveness’ in relation to the protection of freedom of speech and intellectual inquiry is normative and depends upon some common understanding of what limits on the freedom are appropriate and what is necessary to provide an acceptable level of protection of the freedom within those limits. Any statutory regime has to allow room for distinctions to be made between different classes of case and circumstances. A detailed prescription would provide a platform for undesirably intrusive regulatory supervision of the formulation and application of institutional policies. An example is the Campus Free Speech Protection Act 2017 of Tennessee, referred to earlier in this Report. 
Arming a regulator with a detailed statutory prescription would probably require additional compliance resourcing for the regulator. It would impose on the regulator the burden of contestable evaluative and normative judgments. It would diminish institutional autonomy. A statutory standard, beyond the level of generality presently reflected in the HE Standards made under the TEQSA Act, is at risk of being disproportionate to any threat to freedom of expression which exists or is likely to exist on Australian university campuses for the foreseeable future. 
Effective statutory standards can and should be confined to broadly expressed requirements that higher education providers have in place policies reflected in their domestic rules or principles and applicable to student representative bodies, the objectives of which are the protection of freedom of speech as a free-standing value and academic freedom which encompasses freedom of expression peculiar to the distinctive character of higher education institutions and their academic staff in particular. On that model, the existence of an institution-wide policy which could reasonably guide administrative action consistently with the HE Standards should constitute compliance with them. ‘Effective policies’ in this context must at least mean policies which reflect and give effect to a strong presumption in favour of freedom of speech and academic freedom. External review of the existence of such policies and of their administration should be sufficient to provide public accountability without the need to impose financial penalties which are hardly likely to benefit anybody in the higher education sector. That said, the present HE Standards could be improved with a more precise formulation directed to freedom of speech and academic freedom. 
Consistently with that approach, the statutory standard presently established under the HES Act and the TEQSA Act which relates to ‘free intellectual inquiry’ should be amended to refer instead to freedom of expression and academic freedom, coupled with a definition of the term ‘academic freedom’. The HES Act itself should be amended to support that change. 
A more far-reaching measure, in relation to freedom of speech generally, would be the imposition of a statutory duty on higher education providers in relation to freedom of expression which is modelled on the duty imposed on public authorities under the human rights legislation of Victoria, the ACT and now Queensland and in the United Kingdom under the Human Rights Act 1998 (UK). Freedom of speech and expression in that statutory context are terms which are the subject of an extensive body of domestic and international law which has worked out their application and limits case-by-case over many years. The imposition of such a statutory mandate would not involve the application of a novel legal standard although it would be necessary to ensure that its application to the decision-making of higher education providers covered the exercise of statutory discretions and the application of domestic rules and policies. The proposed Model Code should provide a way of responding to such a statutory duty in those places in which it already applies. 
Some might say — if a law of the Commonwealth were to create a statutory mandate along the lines of the existing Victorian, Queensland or ACT provisions applicable to higher education providers —why should it not apply to all public authorities throughout Australia? Such an application would appear to be within the constitutional authority of the Commonwealth Parliament to make laws with respect to external affairs, given the inclusion of freedom of expression in the International Covenant on Civil and Political Rights to which Australia is a party. This Review does not propose a general statutory duty of the kind imposed in Victoria, Queensland and the ACT as one of its recommendations. Such a proposal would have policy implications with which it is not necessary to engage for present purposes. The recommendation of a Model Code, operationalising umbrella principles, coupled with cognate amendments to the HES Act and the HE Standards should be sufficient unto the day.
The report then directly addresses  the Terms of Reference
In summary the response to the Terms of Reference, reflected in the body of this Report, the General Conclusions and the Recommendations is as follows:
1. The effectiveness of the HES Act and the HE Standards to promote and protect freedom of expression and freedom of intellectual inquiry depends upon how they are interpreted by higher education providers and by TEQSA. 
Their interpretation and therefore their effectiveness is made difficult by the uncertain scope of the term ‘free intellectual inquiry’ and its relationship to freedom of expression generally, freedom of expression as an aspect of academic freedom, and academic freedom generally. They must also be interpreted and applied consistently with other standards requiring higher education providers to accommodate student diversity, to promote and foster a safe environment and to foster the wellbeing of students and staff. 
2. The policies and practices of higher education providers which arguably respond to the standards are diverse. They use broad language such that their practical operation in relation to freedom of speech and academic freedom depends upon their interpretation by those who are required to apply them and also upon the exercise of evaluative judgments and discretions. There is no evidence, on the basis of recent events, which would answer the pejorative description of a ‘free speech crisis’ on campus. Nevertheless, the diversity and language of a range of policies and rules give rise to unnecessary risks to freedom of speech and to academic freedom. And even a small number of high profile incidents can have adverse reputational effects on the sector as a whole. 
3. There is a range of approaches in other countries to the protection of freedom of expression and academic freedom that range from legislative prescription to codes of practice to statements of high level principle. The most relevant of those is found in recent consideration of the application of statutory requirements in the United Kingdom. The principles-based approach adopted by a number of universities in the United States is also instructive and potentially applicable in Australia. 
4. The most realistic and practical options are those for which the sector can claim ownership under the general coverage of the HES Act and HE Standards, rather than more prescriptive legislative requirements. The protection of freedom of speech and academic freedom in the sector can be made more effective by the adoption of a statement of principles, preferably operationalised by an overarching code. Such a code should be pitched at a level sufficient to allow for reasonable flexibility in its application but providing greater guidance to decision-makers and others than presently exists. These measures can be supported by minor amendments to the HES Act and the HE Standards to distinguish freedom of speech and academic freedom and to define academic freedom by reference to generally accepted elements. Such principles and a code of practice, which is owned by the sector, offer more promise in supporting a culture disposed to the freedoms than imposed prescription.
French makes a recommendation  for a statutory amenfment
Amendment of the existing HES Act and HE Standards is not essential to support a Model Code for the sector directed to ‘freedom of speech’ and ‘academic freedom’. Nevertheless, it would be preferable that the HES Act and the HE Standards be clarified with the use of that terminology. It is therefore suggested that consideration be given to amending the HES Act along the following lines:
1. Substitute for the objects set out in s 2-1(a)(iv): To support a higher education system that: (i) promotes and protects freedom of speech and academic freedom. 
2. Introduction of a definition of ‘academic freedom’ as follows: “Academic freedom”, for the purposes of this Act and the Tertiary Education and Quality Standards Agency Act and any standards made under that Act, comprises the following elements:
  • the freedom of academic staff to teach, discuss, and research and to disseminate and publish the results of their research;
  • 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; 
  • 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; 
  • the freedom of academic staff, without constraint imposed by reason of their employment by the university, to make lawful public comment on any issue in their personal capacities; 
  • the freedom of academic staff to participate in professional or representative academic bodies; 
  • the freedom of students to participate in student societies and associations. 
  • 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. 
3. Amend s 19-115 of the HES Act to read: 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.
He also recommends amendment of the Higher Education Standards
1. The relevant HE Standard, 6.1 at par 4, be amended consequentially to read: The governing body takes steps to develop and maintain an institutional environment in which freedom of speech and academic freedom is upheld and protected, students and staff are treated equitably, the wellbeing of students and staff is fostered, informed decision-making by students is supported and students have opportunities to participate in the deliberative and decision-making processes of the higher education provider. 
2. A consequential amendment to the criteria for higher education providers set out in Part B of the Standards would have B1.1 reading: The higher education provider has a clearly articulated higher education purpose that includes a commitment to and support for freedom of speech and academic freedom. 
3. There would probably be a need for consequential amendments to the TEQSA guidance note on the diversity and equity statement issued on 11 October 2017. 
4. The existing HE Standards, if amended, would be consistent with a Model Code which is expressed in terms of freedom of speech and academic freedom as distinct but overlapping concepts rather than in terms of freedom of intellectual inquiry. However, the Model Code proposed below should not require an amendment to the HES Act or the relevant HE Standards to render it compliant with them.
As a consequence, a Model Code is recommended. The text of that Code is provided in the following post.