Celia Hammond (Curtin, Liberal Party) Share this | Hansard source

I'm pleased to speak in support of the Higher Education Support Amendment (Freedom of Speech) Bill 2020. The bill amends the Higher Education Support Act 2003 by implementing recommendations arising from the Report of the independent review of freedom of speech in Australian higher education providers undertaken by the Hon. Robert French AC, former chief justice of the High Court of Australia, and published in March 2019. The proposed amendments insert a new definition of 'academic freedom' into the HESA and replace the existing term 'free intellectual inquiry' in relevant provisions with the allied concepts of 'freedom of speech' and 'academic freedom'. These conceptual and definitional changes align the language of relevant provisions in the HESA with those reflected in the model code recommended by the French review, which universities have agreed to adopt.

The French review was initiated in November 2018 by then education minister, Dan Tehan, to review freedom of speech and freedom of intellectual inquiry in higher education. The term 'academic freedom' was not referred to in the terms of reference by virtue of the fact that this phrase is not used in any of the legislative instruments in Australia at the moment, including the higher education standards act and the Higher Education Standards Framework. The language which is currently used is 'free intellectual inquiry'. This term, undefined in legislation, was found by the French review to be a term of uncertain meaning and, because of this uncertainty, its interpretation and effectiveness was made difficult, particularly with respect to its relationship to freedom of expression generally, freedom of expression as an aspect of academic freedom and academic freedom generally.

The French review noted that the uncertainty in language has led to a diversity of policies and practices at higher education providers. While the French review held that there was no free speech crisis on university campuses, it found that the diversity in language of a range of policies and rules gives rise to unnecessary risks to freedom of speech and to academic freedom, and that even a small number of high-profile incidents can have adverse reputation effects on the sector as a whole.

It is because of this uncertainty and diversity that the French review made two interrelated recommendations. The first was that freedom of speech and academic freedom in the sector could be protected more effectively by the adoption of a statement of principles, preferably operationalised by an overarching code. Such a code would 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. It also recommended that minor amendments be made to the HES Act and the Higher Education Standards Framework to remove the reference to free intellectual inquiry, to distinguish freedom of speech and academic freedom, and to define academic freedom by reference to generally accepted elements.

Universities are in the process of implementing the model code and this bill enacts the second of the recommendations coming from the French review. In designing the model code and putting forward a definition of academic freedom, the French review noted that the ideal of academic freedom can be traced back to Socrates defence in Plato's The Apology of Socrates. While it doesn't contain a detailed analysis of the history, the French review does make the observation that debate and discussion about how it should be defined, its meaning and application have been present for some time, including within our very own history of higher education in Australia.

Drawing all of these strands together and identifying the generally accepted elements, the French review made a recommendation that the definition of academic freedom contained the following elements:

The French review did include an additional clause about the freedom of academic staff:

But following a recommendation by the University Chancellors Council, in consultation with the Hon. Robert French, this element of the definition was considered to fit more appropriately within the ambit of a broader societal freedom, referred to in the model code as freedom of speech rather than within the narrower concept of academic freedom. As such, this element has been retained, but as part of the applied concept of freedom of expression within the definition.

I would like to conclude with a number of observations. The first is that I agree with Justice French's conclusions that there is not currently a free speech crisis on campus. Secondly, the fact that issues and challenges have arisen over the last couple of years is nothing new. They have waxed and waned for decades—if not centuries. As beautifully stated by French:

There was no golden age when the scope of freedom of speech and academic freedom in the higher education sector was settled under a common consensus.

There are a lot of different pressures on the modern Australian university: pressures on academics, pressures on professional staff, pressures on students and pressures on management governance. From the perspective of a university as an institution, reputation and standing are paramount to what they do. But, given that they are not simple organisations servicing a singular community, they need to balance the complexity of different interests and different viewpoints, and differing needs and demands.

For example, universities are increasingly required to provide a level of pastoral support and care for students, which I fully support. This sits alongside one of their overriding goals, which is to provide an education where students are supposed to be—or, at the very least, become over the course of their studies—independent learners who are self-directed and fully responsible for themselves, their lives and their studies. The practical consequence of the increasing demands to provide pastoral support for students is that universities face the challenge of balancing the allowances, flexibility and exceptions that some students may need with the university's duty and responsibility to ensure that the person who ultimately graduates is a fully independent learner who has mastered the required level of knowledge and skills attached to the particular qualification they are awarded.

Likewise, all universities must, at law, provide an environment which is safe from harm—harm being both physical and psychological harm. Again, I support this in its entirety. I also note that this sits alongside a key plank of universities and university education, which is that they are places where people are supposed to be challenged and tested, where they may come across ideas or information that confronts them. Criminal law students will come across cases, the facts of which can be very disturbing—likewise, history students and literature students. The practical consequence is again that universities face the challenges of ensuring that staff and students are safe whilst simultaneously ensuring that the requisite information is conveyed so as to ensure that students develop the knowledge and understanding that is required of them.

If the universities do not get the balance right—that is, not providing a good education or not providing a safe and supportive environment—they can be subject to criticism, reputational damage and potential legal action on both fronts. The same goes for academic freedom. When an academic publishes or says something that attracts derision, criticism or attack, it is not simply the academic who comes under attack; it can often lead to an attack on the institution itself. Statements made by university management at these times—frequently, 'This is not the university position, but it is the view of the particular academic'—are often misunderstood or derided, either as not being supportive enough of the academic or being too weak and not strong enough to stand up for what is right.

The institution's management have an obligation to protect the reputation and standing of the institution, but this can be extremely difficult when there is a lack of understanding about what academic freedom means. Likewise, the institutional autonomy of a university, which is part of academic freedom, can come into conflict with the academic freedom of an individual academic. Both clauses are within the definition, but they can come into conflict. An institution can choose what it will teach, how it will teach it, what research it does and how that is done, notwithstanding that under the definition an academic has freedom to teach, discuss, research and disseminate. The fact is that universities are challenging places. They always have been and, quite frankly and hopefully, they always will be. Unless they are challenging, unless there are tensions, unless there are internal disputation about issues, universities face a stagnancy.

This amendment to the law will not solve all problems. There will inevitably still be disputes about whether something is or is not an exercise of academic freedom. There will be tensions with employment law and antidiscrimination law. As a right, which academic freedom is and which these amendments legislate for, academic freedom sits beside other rights and may at times come into apparent conflict with them. That is the nature of our rights. That is the nature of our universities. The greater clarity in providing this definition will not stop issues arising, but it will provide a greater context in which to address them, a better context for pre-emption and therefore resolution. I finish with a quote from Justice French which I think sums up the best way to approach these issues at universities:

Far more important than rules will be a culture which embraces the inevitability of dissent on the one hand and the importance of compromise to the effective functioning of the institution.

I am happy to support this bill.

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