In June, several Australian universities announced they would adhere to a freedom of speech code recommended following a Federal Government review.
The move followed a call by Federal Education Minister, Dan Tehan, for universities to implement a ‘model code’ to protect freedom of speech and academic freedom on campus.
The model code was drafted by a former High Court chief justice, Robert French, as part of his review of freedom of speech in Australian universities.
But do universities really need it?
Katharine Gelber, Professor of Politics and Public Policy from The University of Queensland and Kristine Bowman, Professor of Law at Michigan State University, recently addressed this question in an article published in The Conversation.
“The model code recognises that universities’ duties include preventing staff and students using lawful speech in a way that would be regarded as “likely to humiliate or intimidate” others,” they wrote.
“This provides quite a generous scope for universities to prevent discriminatory and vilifying speech, even if it would not meet the legal threshold for vilification under federal law or state law such as in NSW.”
The code also recognises that academic freedom can be limited by reasonable requirements about course content and pedagogy (although offensive or shocking material that is otherwise compliant is protected by academic freedom).
“Finally, the model code turns to concerns that have dominated media headlines and motivated the inquiry – hosting controversial speakers,” Gelber and Bowman wrote.
In response to the French report, Universities Australia’s chief executive, Catriona Jackson, said universities would consider its recommendations. She also emphasised universities’ independence.
“Sector-wide legislative or regulatory requirements would be aimed at solving a problem that has not been demonstrated to exist and any changes could conflict with fundamental principles of university autonomy,” Jackson said.
The University of Melbourne recently released a new policy on free speech, which is substantially similar to the model code.
Gelber and Bowman said this begins from the presumption free speech, academic freedom and university autonomy are all “core values”. It limits free speech that “unreasonably disrupts activities or operations of the university […] or jeopardises the physical safety of individuals”.
“But it arguably goes further in permitting limitations on speech that ‘undermines the capacity of individuals to participate fully in the University’,” they noted.
“This provision is particularly interesting. At first it appears similar to the model code’s duty of the university to foster student and staff well-being, but the code requires the university to prevent discriminatory harms.”
By contrast, the University of Melbourne’s policy suggests an affirmative duty for members of the university community to support one another’s capacity for full engagement in university life.
“This is possibly a more positive understanding of the freedom than encapsulated by the model code,” Gelber and Bowman said.
“Finally, and illustrating the complexity of these issues, Melbourne’s new policy links to other detailed university policies that regulate workplace behaviour, student conduct, university facilities, acceptable use of IT, and academic freedom.”
The University of Sydney has also announced plans to “thoughtfully” implement the principles of the model code.
However, Gelber and Bowman said this remains to be seen how it will play out.
“The university recently concluded its investigation into the protests against Arndt, disciplining one student while also reinforcing that protests are protected speech,” they wrote.
“Focusing on policies is only part of the story.”
They cited French, who in his report stated: ‘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.’
“We could not agree more.”