'To What Extent Should Academic Freedom Allow Academics To Criticise Their Universities' by Nina Levine and Haydn Rigby in (2022) 48(1) Monash University Law Review comments
The recent case of Schröder-Turk v Murdoch University has thrown up questions in relation to the extent to which an academic is allowed to criticise the university at which they are employed. What freedom, if any, does an academic have to criticise the practices of their Australian university? Are there any limits to this freedom? Are these limits appropriate? These questions in turn raise questions as to the existence and nature of any right that an academic has to exercise academic freedom in Australia and the extent to which this right may provide an academic with more protection to criticise their university employer than they may have otherwise had and whether this may have unintended, detrimental consequences. Does this right to academic freedom allow academics to criticise their institution whether or not they have a reasonable basis for doing so and if so, should this be the case? This article explores these questions with particular reference to the effect of the Model Code for the Protection of Free Speech and Academic Freedom recommended by former High Court of Australia Chief Justice Robert French and proposes some amendments to this Code.
In May 2019, Associate Professor Gerd Schröder-Turk, an academic staff member at Murdoch University and a staff representative on the Senate at the University, made statements on the Australian Broadcasting Corporation’s Four Corners program in which he expressed concern about the policies of Murdoch University (and those of other Australian universities) in relation to international students. In particular, he expressed his discomfort with Murdoch University’s waiving of English proficiency requirements in order to increase international student enrolments. Murdoch subsequently removed Associate Professor Schröder-Turk from its Senate body which resulted in his bringing an action against the University in which he made two claims against it. First, Associate Professor Schröder-Turk claimed that Murdoch University had breached s 340 of the Fair Work Act 2009 (Cth) (‘FW Act’) in taking adverse action against him because he exercised his workplace rights including his right to academic freedom. Secondly, he alleged that the University had contravened the Public Interest Disclosure Act 2003 (WA) (‘WA PID Act’) by taking detrimental action against him because of his disclosure of public interest information or ‘whistleblowing’. Murdoch University’s response was to bring a cross-claim against the Associate Professor, alleging that he had breached his fiduciary duty to the university by his disclosure to journalists and claiming that as a result of this unfavourable media coverage, the university had suffered revenue loss from a reduction of international student enrolments and reputational damage to the university. The university’s response was met with disbelief by the academic community (and beyond) as it appeared to fly in the face of academic freedom with the university being petitioned to drop its cross-claim. The university subsequently did withdraw its cross-claim, a fact that did not escape media attention, and at the time of writing, it has resolved the remaining legal issues with the Associate Professor out of court, bringing the litigation to an end.
Associate Professor Schröder-Turk’s case is not the first of its kind in Australia. Indeed, there have been similar cases where academic staff have made accusations of wrongdoing occurring within their university. A notable example is that of Professor Ted Steele who was dismissed from, and then subsequently reinstated to, the University of Wollongong after he made allegations against it of ‘soft marking’ practices in favour of international full-fee paying students. Another example is that of sessional lecturer Ian Firns who in 2003 raised concerns about the Graduate School of Business at the University of Newcastle in relation to their handling of plagiarism by overseas students. These concerns were ultimately investigated by the Independent Commission Against Corruption (‘ICAC’) with two members of the University’s staff being found to have engaged in corrupt conduct.
These cases all throw up questions in relation to the extent to which an academic is allowed to criticise the university at which they are employed, and to whom they can disclose such criticism. What freedom, if any, does an academic have to criticise the practices of their Australian university? Are there any limits to this freedom? Are these limits appropriate? These questions in turn raise questions as to the existence and nature of any right that an academic has to exercise academic freedom in Australia and the extent to which this may provide an academic with more protection to criticise their university employers than they may have otherwise had, and whether this may have any detrimental consequences. Does this right to academic freedom allow academics to criticise their institution whether or not they have a reasonable basis for doing so and if so, should this be the case? This article explores these questions. In doing so, it makes particular reference to the recent Report of the Independent Review of Freedom of Speech in Australian Higher Education Providers(‘Review’) led by the Hon Robert S French AC, former Chief Justice of the High Court of Australia, and its recommended ‘Model Code for the Protection of Free Speech and Academic Freedom’, together with the subsequent amendments to it, being those amendments adopted by the University Chancellors Council (‘UCC’) (the ‘Model Code’). Given the current pressure being placed on universities to adopt the Model Code, with its definition of academic freedom as explained further below, it is likely that the Model Code will be of primary relevance in the Australian higher education sector in the coming years. However, an understanding of the freedom that academic staff would otherwise have to criticise the universities at which they are employed is necessary to fully appreciate the effect of the Model Code on this right.
As academic freedom is central to this article, the article begins by considering its meaning for Australian universities. It reflects on the reluctance of those involved in the establishment of the first universities in Australia to provide for any defined right of academic freedom or any demarcated limits on its expression by academic staff. It discusses the consequences of this reluctance as shown in Australian university history before examining the definition of academic freedom proposed by French in the Review and the Model Code. It then considers the extent to which an academic today would have the freedom at common law and under statute to criticise the practices of their universities independently of any right to academic freedom. Following this, it draws on the extensive examination of university legislation, enterprise agreements (‘EAs’) and policies conducted for the purposes of the Review in considering whether academic staff at Australian universities had any express or implied right to academic freedom prior to the Model Code and the extent to which any such right of academic freedom allowed an academic to criticise their university. Finally, it considers the extent to which the Model Code may provide an academic with more freedom to criticise their universities than they would have otherwise had and whether this may have any unintended, detrimental consequences. It makes recommendations as to how the Model Code could be amended to avoid any such consequences.
As stated in the Review, ‘[o]ne aspect of academic freedom which has not received great prominence in the Australian debate, is the freedom of academic staff to publicly criticise the policies or performance of the institution’s administration and governors’. It is hoped that this article will help to provide this aspect with greater prominence.
