Explanatory Memorandum
(Circulated by authority of the Minister for Education, the Honourable Dan Tehan MP)Schedule 1 Amendments
Summary
The proposed amendments give effect to the Commonwealth Government's decision to implement the recommendations arising from the French Review.
The proposed amendments insert a new definition of academic freedom into the HESA and replace the existing term 'free intellectual inquiry' in relevant provisions of that Act with the allied concepts of 'freedom of speech' and 'academic freedom'. These conceptual and definitional changes are intended to align the language of relevant provisions in the HESA with that of the French Model Code as recommended by the French Review.
These amendments are one of three key elements of the Government's response to the French Review and are designed to strengthen protections for academic freedom and freedom of speech in Australian universities. In addition to the proposed amendments to the HESA, the Government is working with universities to support the adoption of the French Model Code. Consistently with the measures contained in the Bill and in recognition of the progressive adoption of the French Model Code by universities, the Threshold Standards will also be amended to align the language of the instrument with that of the French Model Code.
Detailed explanation
Higher Education Support Act 2003
Item 1 - Subparagraph 2-1(a)(iv)
Section 2-1 sets out the objects of the HESA. Item 1 omits the phrase "free intellectual inquiry in learning, teaching and research" and substitutes "freedom of speech and academic freedom".
The phrase "freedom of intellectual inquiry" encapsulates elements of freedom of speech and academic freedom. Item 1 amends subparagraph 2-1(a)(iv) of the HESA in order to distinguish between the concept of freedom of speech as a common societal freedom and freedom of speech and intellectual inquiry as sub-sets of, or adjuncts to, academic freedom.
Items 2 and 3 - Section 19-115
Item 2 changes the heading of section 19-115 of the HESA. Section 19-115 requires higher education providers that are Table A providers or Table B providers to have a policy upholding free intellectual inquiry.
Item 2 omits the phrase "free intellectual inquiry" from the heading of section 19-115 and substitutes the phrase "freedom of speech and academic freedom".
Item 3 omits the phrase "free intellectual inquiry in relation to learning, teaching and research" from section 19-115, and substitutes "freedom of speech and academic freedom".
The changes made by Items 2 and 3 are consistent with the nomenclature change made in Item 1.
Item 4 - Subclause 1(1) of Schedule 1
Item 4 inserts a definition of "academic freedom" into subclauses 1(1) of Schedule 1 to the HESA. "Academic freedom" means the following:
- (a)
- the freedom of academic staff to teach, discuss, and research and to disseminate and publish the results of their research;
- (b)
- the freedom of academic staff and students to engage in intellectual inquiry, to express their opinions and beliefs, and to contribute to public debate, in relation to their subjects of study and research;
- (c)
- the freedom of academic staff and students to express their opinions in relation to the higher education provider in which they work or are enrolled;
- (d)
- the freedom of academic staff to participate in professional or representative academic bodies
- (e)
- the freedom of students to participate in student societies and associations;
- (f)
- the autonomy of the higher education provider in relation to the choice of academic courses and offerings, the ways in which they are taught and the choices of research activities and the ways in which they are conducted.
The statutory definition in Item 4 closely aligns with the definition in the French Model Code but includes a minor technical modification recommended by the University Chancellors Council, in consultation with the Honourable Robert French AC. This modification excludes from the definition "the freedom of academic staff, without constraint imposed by reason of their employment by the university, to make lawful public comment on any issue in their personal capacities" element of the Code definition. This element of the definition was more appropriately considered to fit 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.