Can’t Howl This Down: More Must Be Done To Protect Free Speech

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24 April 2019
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Former chief justice Robert French’s review into university freedom of speech is a powerful vindication of those who have raised concerns about free speech protection on Australia’s campuses.

The review’s terms of reference instructed French to assess the existing higher education standards, the effectiveness of policies and practices to protect free intellectual inquiry, consider overseas approaches and, if he believed it necessary, recommend changes to the higher education standards and a model code of conduct to protect free speech.

On the core question, French concluded university rules and policies “use broad language capable of impinging on freedom of expression”. He also developed and recommend the adoption of a model code and changes to the standards.

French does state there is a lack of evidence of a free speech “crisis” on Australian campuses.

Whether there is a crisis, however, was not actually the topic of the review. French clearly believes recent events have raised genuine questions about free speech and that existing policies are flawed.

The model code is a powerful statement of free speech principles. It rejects the notion that speech should be limited because someone feels “offended or shocked or insulted”.

Despite claims otherwise in some submissions, French states free speech is a “paramount” and “special” value, not just one value among many.

Much of the reporting and university response to the inquiry has ignored, perhaps purposefully, the nuance and actual conclusions of the French’s review.

Universities Australia has welcomed the finding that there is no crisis while not addressing the inadequacy of policies or supporting the code.

This is a manifestly inadequate response to French’s methodological 300-page review.

Perhaps this should be no surprise considering some of the submissions to the review.

One vice-chancellor, revealed in a footnote to be the University of Wollongong’s Paul Wellings, is dismissive of the review’s existence, asserting the sector’s management of academic freedom and freedom of expression is “robust and appropriate”.

French says Wellings’s assertion is “an argumentative observation of little empirical value” — a legalistic way of saying complete nonsense.

One university compared itself to “organisations, employers and property owners outside the higher education sector”, which are “not required to treat free speech as a ‘paramount value’ ”.

“This was a surprising response,” French writes.

“A university which owns property is not just another property owner. It is a public authority created by public law for the benefit of the community and inheriting a long historical tradition.”

Universities Australia responded to the draft model by stating it “could override a broad range of university policies and procedures that have been carefully constructed — balancing rights and responsibilities”.

French rejects this: “A plausible characterisation would be of a rather untidy organic process.”

But, more fundamentally, if the code overrides existing policies, is this not an admission that the existing policies inadequately protect free expression?

The responses, however, were not all bad. Seven universities have already or are intending to review their free speech policies.

Most higher education providers acknowledged the need to do something, and a third explicitly backed the development of the model code.

The code also was welcomed by the sector regulator, the Tertiary Education Quality and Standards Agency.

The Institute of Public Affairs’ Free Speech on Campus Audit 2016 (updated in 2017 and last year) was the first analysis of university policies and actions related to free expression.

These IPA audits found most universities have policies that undermine free expression. French refers to the IPA’s audit and submission on several occasions, and lists incidents found by the IPA in an appendix.

French similarly points to a plethora of policies that are capable of impinging on freedom of expression. Student conduct policies at La Trobe University and James Cook University, for example, prevent behaviour that “may be reasonably perceived” as harassing or offensive language.

“That language, of course, begs the question ‘perceived by whom?’,” French writes.

“To that extent it leaves open the possibility of a range of viewpoints informing characterisation and the possibility of overreach adverse to freedom of speech.”

French points to policies that require upholding a university’s reputation: “This kind of language may beg the question — ‘reputation’ from whose point of view?

“A controversial opinion on a particularly contentious topic might be seen by some, who vehemently disagree with it, as damaging to the reputation of the university but (which may be) not so seen by others.”

French says these policies empower university administrators to make arbitrary decisions about allowable speech.

This is particularly relevant in the context of Peter Ridd v James Cook University.

Last week a federal court judge declared the intellectual freedom provision in Ridd’s enterprise agreement took precedence over the code of conduct provision about not damaging the university’s reputation. This contributed to the finding that Ridd’s sacking was unlawful.

Some in the university sector have asserted that requiring universities to protect free expression would somehow undermine their autonomy. In the first instance, it is unclear what autonomy would be restrained, other than perhaps the autonomy to operate a monoculture, ideologically driven institution paid for by the taxpayer. In any case, there is no way an optional model code threatens university autonomy.

French concludes by saying: “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.”

Australia’s universities have a moral, legal, and practical responsibility to foster a culture that protects free speech.

This should start with addressing inadequate policies and adopting the model code — but, more fundamentally, they must foster and encourage debate from a wide array of perspectives.

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