The Australian review of university free speech

By Gavin Moodie

Free speech on campus was championed by the left from the 1960s in the wake of McCarthyism. Now of course it is championed by the right, perhaps because people feel their identity is as threatened by the cosmopolitanism of universities and other institutions of high culture as their economic security is threatened by globalisation.

The politics of Anglophone Canada and the UK are similar to those of Australia. In May the conservative UK Universities Minister warned that the higher education regulator could ‘name, shame or even fine institutions for not upholding the principle of free speech.’ In August Ontario’s new conservative government imposed a free speech policy on the province’s publicly-assisted colleges and universities. Soon thereafter in November Australia’s right wing government announced a review into university freedom of speech.

Australian Legislation

The main Australian federal higher education legislation requires universities to ‘have a policy that upholds free intellectual inquiry in relation to learning, teaching and research’. That is, the legislation protects academic freedom. But there is no legislated protection of free speech on campus, and since conservatives have trenchantly opposed an Australian Bill of Rights, there is no general national protection of free speech in Australia to complement some States’ protections.

The Australian Minister for Education clearly contemplates free speech on campus being protected by an addition to the higher education standards framework, which sets out in 40 pages the requirements for all public and private bodies to be registered as a higher education provider. The protection of free speech would be added to current standards for student participation and attainment, providing a good learning environment, teaching, research and research training, institutional quality assurance, governance and accountability, and representation, information and information management.

The Review

The Australian review will be conducted by Robert French, a former chief justice of the High Court of Australia and the current chancellor of one of Australia’s elite universities, the University of Western Australia. French, CJ was known not only as a fine jurist, but also as a liberal and resourceful justice.

Helpfully, in September French set out his views in a speech he titled: ‘Free speech and the law on campus – do we need a charter of rights for universities?’ In that speech French briefly reviewed current Australian law on academic freedom and free speech on campus and judiciously weighed several competing considerations in managing difficult cases.

In his acceptance of the review French added that he planned to conduct the review cooperatively and consultatively with universities to produce a resource including a moral code that can guide universities. However, in his speech French acknowledged that practical decision making can be ‘difficult and hotly contested’ no matter how aspirational and well framed a code may be.

Distinguishing the Agora and the Cloister

French and the Australian minister distinguish carefully between free speech and academic freedom. But unfortunately much commentary confuses these very different principles; they confuse an academic cloister with the agora or public square.

Academic freedom’s main value is academic. It applies only to academics, it is based on their expertise, and protects only speech which conforms to scholarly norms of evidence and rational argument. Though it may be for a public benefit, academic freedom is a private right in the sense that it is enjoyed by individuals by virtue of their personal circumstances, like owning property or being party to a contract. Academic freedom exists in private spaces such as teaching spaces, laboratories and conferences, and it may be exercised through private media such as journals, though they may be published to the world at large.

Academic freedom does not protect lying, plagiarism, proselytising, offending students, nor advocating a flat earth or any other position which is not supported by what scholarly norms accept as evidence and rational argument.

In contrast, freedom of speech’s main value is democratic. It applies to all citizens, it is not based on expertise and is not restricted to rational argument from evidence. It is a public right which exists only in public spaces. It protects lying, plagiarism, proselytising, offending people, advocating a flat earth and other irrational beliefs.

Academic freedom is thus an ‘occupational’ freedom: it is one of a number of activities that has a freedom of expression distinctive of the activity and desirable to advance that activity. Other examples are a court of law where the parties, counsel, witnesses, experts, the judge and jurors have a freedom and in many circumstances a responsibility to speak honestly and openly about the issues in dispute regardless of whether they may defame or otherwise harm others. And in a legislature legislators, experts and petitioners have a right to present views unrestricted by defamation and other usual curbs on freedom of expression.

So the Australian minister has greatly improved on the Ontario Government and the UK Minister in launching a well considered inquiry before deciding to discipline universities’ free speech. Yet as in Ontario, Australia’s university free speech review is ‘a solution in search of a problem’ with a wide ‘gap between the theatrics of Progressive Conservative’s embrace of campus free speech and reality’, as Creso Sá observed of Ontario.

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