Explanatory Memorandum
(Circulated by authority of the Minister for Education, the Honourable Dan Tehan MP)OUTLINE
The Higher Education Support Amendment (Freedom of Speech) Bill 2020 proposes to amend the Higher Education Support Act 2003 ( HESA ) to implement recommendations arising from the 2019 Report of the Independent Review of Freedom of Speech in Australian Higher Education Providers, undertaken by the Honourable Robert French AC, former Chief Justice of the High Court of Australia ( 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 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 for the Protection of Freedom of Speech and Academic Freedom in Australian Higher Education Providers recommended by the Honourable Robert French AC ( French Model Code ).
The proposed 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 Higher Education Standards Framework (Threshold Standards) 2015 (the Threshold Standards ) will also be amended to align the language of the instrument with that of the French Model Code.
FINANCIAL IMPACT STATEMENT
There are no financial implications.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
HIGHER EDUCATION SUPPORT AMENDMENT (FREEDOM OF SPEECH) BILL 2020
The Higher Education Support Amendment (Freedom of Speech) Bill 2020 (Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Bill proposes to amend the Higher Education Support Act 2003 ('HESA') to 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' in the HESA and align the terminology used in relevant provisions with that of the French Model Code.
These amendments are one of three key elements of the Government's response to the Review to strengthen protections for academic freedom and freedom of speech in Australian universities. In addition to the 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 Higher Education Standards Framework (Threshold Standards) 2015 (the Threshold Standards ) will also be amended to align the language of the instrument with that of the French Model Code.
Analysis of human rights implications
The Bill engages the following human rights:
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- the right to education - Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); and
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- the right to freedom of expression - Article 19 of the International Covenant on Civil and Political Rights (ICCPR).
The protection of academic freedom falls under the rubric of freedom of expression and right to education. The protection of academic freedom engages the right to freedom of expression (as a subset of the collective rights of members of the academic community and students to freedom of discourse, opinion and association) and the right to freedom of education (in terms of the role of academic freedom being inextricably linked to the realisation of the societal goal of education including ensuring that education is directed to 'the full development of the human personality').
Notably, state party obligations under the respective international conventions extend beyond the obligation to respect and protect academic freedom as a subset of the broader human rights. States parties also have the obligation to ensure and promote academic freedom as part of their compliance with the broader human rights in relation to which that freedom sits. This means that states parties must actively create, establish and maintain the conditions for the optimal realisation of academic freedom, including amending domestic legislation and procedures in order to ensure recognition of this right in the national legal order. Furthermore, it includes the obligation to adopt appropriate legislative and administrative measures directed towards the full realisation of academic freedom in all its dimensions.
Right to education
The principle of academic freedom derives in part from the right to education enshrined in Article 13 of the ICESCR. The UN Committee on Economic, Social, and Cultural Rights (UN CESCR) has emphasised that the "right to education can only be enjoyed if accompanied by the academic freedom of staff and students". It has also indicated that "staff and students in higher education are especially vulnerable to political and other pressures which undermine academic freedom" (UN CESCR, General Comment 13 at paragraph 38). Academic freedom supports the right to education as it facilitates the ability of students, academics and researchers to freely proffer views, critically inquire and examine issues, challenge orthodoxies, contribute to the body of knowledge across disciplines and exchange ideas without reproach.
The measures in the Bill engage and promote the right to education to the extent that it would require Table A or Table B providers to have a policy upholding 'freedom of speech and academic freedom' reframing the existing requirement that these providers have a policy upholding free intellectual inquiry. This proposed amendment obligates these providers to have policies that support and uphold free intellectual inquiry going to the preservation of the institutional autonomy and self-governance of universities to decide how best to run their institutions without unreasonable interference, in developing curricula and other programmes or services. It also expressly extends to the individual right of academic staff and students to engage in the production, consumption and dissemination of knowledge without unreasonable restrictions.
The new definition of 'academic freedom' also supports the right to education by recognising higher education is a collective as well as an individual undertaking, which is underpinned by open discussion and critical debate. It expressly recognises that academic staff need freedom to teach, test and challenge the body of knowledge and promulgate ideas. Academic freedom is a necessary corollary of the exercise of the right to education by facilitating the free flow of information, ensuring academics are able to exchange ideas, challenge and interrogate accepted positions and develop and refine their own scholarship.
Right to freedom of expression
The Bill engages and promotes the right to freedom of opinion and expression as contained in Article 19 of the ICCPR.
Article 19 of the ICCPR provides for freedom of expression and to hold opinions from which the concept of academic freedom can also be inferred. The Article states that everyone shall have the right to hold opinions without interference and have the right to freedom of expression, which includes freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in form of art, or through any other media of their choice. Article 19 can be read in conjunction with Article 15(3) of the ICESCR which also obliges states parties to respect the freedom indispensable for scientific research and creative activity. At the core of the right to academic freedom is the right of the individual to conduct research, to publish and to disseminate learning through teaching and inquiry, without unreasonable interference.
Relevantly to the right to freedom of expression, in its General Comment on Article 13 of ICESCR (which relates to the right to education), the UN CESCR observed:
"Academic freedom includes the liberty of individuals to express freely opinions about the institution or system in which they work, to fulfil their functions without discrimination or fear of repression by the State or any other actor, to participate in professional or representative academic bodies, and to enjoy all the internationally recognized human rights applicable to other individuals and '[t]he enjoyment of academic freedom requires the autonomy of institutions of higher education" (UN CESCR, General Comment 13, paras. 38 and 40).
The new definition of 'academic freedom' reflects the broader principles enshrined in the concept of 'academic freedom' promulgated by the UN CESCR by providing for a right to expressive freedoms for the higher education community in a manner which seeks to preserve freedom of opinion and expression and freedom of association. The definition also expressly recognises the collective or institutional right of autonomy for higher education providers in general and in terms of their governance, academic standards, faculties and research programs.
Under Article 19(3), the right to freedom of expression may be subject to limitations that are necessary to protect the rights or reputations of others, national security, public order, or public health or morals. Limitations must be prescribed by law, pursue a legitimate objective, be rationally connected to the achievement of that objective and a proportionate means of doing so. To the extent that the right to freedom expression may be limited by the scope of the definition of academic freedom, the limits are reasonable and proportionate in that they impliedly recognise the countervailing rights of students and academics not be subjected to stigmatising, derogatory and discriminatory statements aimed at particular students (or other academic staff). They also recognise the need to balance the individual freedom of academic staff to teach with the collective or institutional aspects of those freedoms as determined by the institutional contexts in which academic staff members operate.
The French Model Code and supporting legislative amendments provide for more robust and transparent policies in relation to freedom of expression and academic freedom across the university sector.
Conclusion
The proposed new definition of academic freedom and the requirement for universities to extend their existing policy frameworks to encompass this freedom are measures which are in direct furtherance of the broader rights to freedom of expression and education. University teaching and academic research serve the common good of society through critical inquiry, research advancements and through fostering independent thinking and expression in academic staff and students. Enshrining the concept of academic freedom into domestic legislation serves to support this societal goal by:
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- preserving and promoting the institutional independence of the academic community from interference in the performance of their various roles and responsibilities such as course delivery
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- promoting conditions in which the right to education can be provided inclusively to students, and
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- securing (as an element of academic freedom) the right of academic staff to research and contribute to the body of knowledge and engage in critical discourse.
The Bill is compatible with human rights because it advances the protection of academic freedom and, by extension, the rights to freedom of expression and freedom of education in Australia. To the extent that it may limit human rights, these limitations are reasonable, necessary, and proportionate.
Notes on Clauses
Clause 1 - Short title
This clause provides for the Act to be the Higher Education Support Amendment (Freedom of Speech) Act 2020.
Clause 2 - Commencement
The table in subclause 2(1) sets out when the Act's provisions will commence. The table provides that the whole of the Act commences the day after the Act receives the Royal Assent.
Subclause 2(2) provides that information in column 3 of the table at subclause 2(1) is not part of the Act and information may be inserted into column 3 or information in it may be edited in any published version of the Act.
Clause 3 - Schedules
This clause provides that any legislation that is specified in a schedule is amended or repealed as set out in the applicable items in the schedule and that any other item in a schedule has effect according to its terms.
LIST OF ABBREVIATIONS
HESA Higher Education Support Act 2003
French Review Report of the Independent Review of Freedom of Speech in Australian Higher Education Providers March 2019
French Model Code Model Code for the Protection of Freedom of Speech and Academic Freedom in Australian Higher Education Providers
Threshold Standards Higher Education Standards Framework (Threshold Standards) 2015
ICESCR International Covenant on Economic, Social and Cultural Rights
ICCPR International Covenant on Civil and Political Rights
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.