Monday, 15 March 2021
Higher Education Support Amendment (Freedom of Speech) Bill 2020; In Committee
I move opposition amendment (1) on sheet 1231, standing in my name:
(1) Schedule 1, item 4, page 3 (line 24), at the end of paragraph (c), add "or in relation to the Commonwealth Government".
The purpose of this amendment is to add a very simple term, 'or in relation to the Commonwealth government'. At schedule 1, item 4, there is a definition of academic freedom. The bill seeks to put in context what academic staff can look to in terms of academic freedom. It lists the freedom of academic staff to teach, discuss, research, disseminate and publish; the freedom of academic staff and students to engage in intellectual inquiry; and 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. I wish to add the words 'or in relation to the Commonwealth government' so that staff or students can make their views known in relation to not just the education provider but also the Commonwealth government.
The definition goes on to refer to the freedom of academic staff to participate in professional or representative academic bodies; the freedom of students to participate in student societies and associations; and 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. This actually seeks to broaden the definition of academic freedom. Given that this is a bill that purports to be about freedom of speech, it should be of course no difficulty whatsoever for the government to support this amendment. The great Liberal defenders of free speech surely will support the notion that students and staff can comment not just on their academic provider—that is, their university—but on the government of Australia. I would have thought that was a pretty fundamental concept when we're talking about freedom of speech.
The problem with the bill is that it confuses academic freedom and freedom of speech, despite it being called a freedom-of-speech bill. Nonetheless, I don't think the government will have any difficulty, if it's serious about freedom of speech, in supporting the rigorous protection of free speech in universities. After all, universities are places which are supposed to harbour the opportunity for people to express their views—not just about the university but about the policies being pursued by the government of Australia.
Former Chief Justice Robert French, in his inquiry—I think it's important to draw attention to this—said the claims of a freedom-of-speech crisis in Australian universities were not substantiated, that there was no evidence of a free-speech crisis on campus. Nonetheless, the government has persisted with this particular bill, so I think it's appropriate to put in place protections for academics and students, to give them the opportunity to comment on government policy. By accepting this amendment, the government will remove the taint that they're being paranoid in their pursuit of their agenda as cultural warriors and—as I heard so often in the second reading debate—in their fears of the Left in this country. It's a truly remarkable proposition that the Left is so powerful and has such an enormous influence that it's necessary to bring forward bills such as this. If it is such a serious question then the rights and protections of academics and students to express their opinions in our great public institutions should be enshrined in the legislation itself.
The academic bodies have not been particularly concerned about these matters. I think it was at a National Press Club address last year that Professor Deborah Terry made the point that our institutions 'are places of knowledge, critique and dialogue'. She said they are 'communities of diversity and inclusion, courtesy and respect'. She went on to say:
We honour our calling as we impart our founding ethos and these skills to each new generation.
… … …
Australia's universities are places where people debate issues rigorously and vigorously.
And they are places where uncomfortable debates—challenging debates—are held.
That does not mean that we suspend courtesy, compassion or kindness along the way.
Indeed, the art of a great university education is acquiring skills in how to dismantle and refute the ideas of those with whom we disagree.
Expertly. Methodically. Cogently.
And always doing so with integrity and respect for others.
Academic freedom is at the heart of what universities do.
She made the point that American professors Matthew Finkan and Robert Post observed that it is 'the freedom to pursue the scholarly profession according to the standards of that profession'. She said:
All freedoms are, of course, not without limits under the broader law.
In Australia, freedom of speech is not exempt from laws that ban hate speech, incitement to violence, discrimination or defamation.
And within that broader framework, freedom is flourishing.
So it's appropriate, given that context and the way in which Universities Australia has argued the case, that we should ensure that the legislation covers a guarantee that staff and students can comment on government policy, a fundamental freedom-of-speech issue which I note is excluded from the government's list—how remarkable. I look forward to the government's support for this amendment. It's a very straightforward matter. It should have no trouble whatsoever in endorsing such a fundamental principle of academic freedom and such a fundamental principle of freedom of speech.
The Greens support this amendment. The freedom to express opinions with respect to the Commonwealth government is really important. Staff and students should be free to criticise the government without fear of repercussions or adverse action. But this government really doesn't want anyone to speak up. This government, when it comes to its members, wants everyone to shut up. They don't want anyone to hold them accountable. If we had any doubts about that, we need to look no further than the last three weeks, when all this government has been doing is cover-ups, silencing people and obfuscating since the allegations of rape and sexual assault were made. As I said in my contribution to the second reading debate on this specific bill, some of the most powerful civil rights movements of our time included university staff and students who were critical of government policies and government positions on the level of government responsibility for funding and regulating higher education. From time to time university staff and students may have strong opinions about the Commonwealth as those opinions relate to their particular issues or, really, any issue that's happening in the country. They have the right to express and voice their opinions about the Commonwealth.
Senator Roberts, I'm not aware of any instances but, given that I only have carriage of this bill on behalf of another minister, I will make sure I check that and come back to you. But, to the best of my knowledge, the answer is no.
The government believes that this amendment is unnecessary—
The amendment seeks to include the freedom to criticise the Commonwealth government in the definition of academic freedom. This is a free speech matter, rather than an issue of academic freedom. The government doesn't support this amendment, because the freedom of expression of opinions on any matter in a personal capacity is already implicit in the adoption of the French model code, which all universities have already agreed to. So, as I said, the government will not be supporting this amendment.
The government's hypocrisy is exposed in that very statement—absolutely and completely exposed! The government can't manage to separate the issue of so-called academic freedom from freedom of speech. It can't define these issues, or has no capacity to define these issues, because what this is really about is the campaign by right-wing extremist elements within the government to try to find a diversion from its problems. There is no evidence—no evidence—anywhere that the universities are in a crisis on the question of academic freedom any more than there is a crisis in terms of the capacity to have freedom of speech. But the government can't accept any proposition that says, 'We'll enshrine that in legislation,' exposing, as such, the hypocrisy—the total hypocrisy—of this government when it comes to this measure.
The minister's response does not surprise me, because this is a flawed proposition from beginning to end. It was designed to actually allow for the extremist elements within the government to claim that it's doing something to try to bring the universities to heel—universities which they regard as essentially institutions hostile to them. It's a nonsense proposition to begin with, given the number of coalition members who had academic careers within our universities; it's a nonsense, given the range of extraordinarily conservative views that come out of our universities; and it's a nonsense in view of the fact that their own appointed reviewer, Chief Justice Robert French, found that there was no crisis. There was no crisis and they had to manufacture one for their own narrow political purposes.
That's because they can't reconcile the problem of university autonomy and they can't reconcile the fundamental principles of proper debate within universities with the proposition that they want to bring them to heel. That's the real nub of the question here. This amendment puts them fairly and squarely on the spot so they have to make a decision. If people are able to have freedom of debate, freedom of opinion and freedom of speech then the capacity to criticise the government should of course be willingly accepted. But it's not, therefore exposing the hypocrisy of this whole proposition that the government has before the chamber.
The CHAIR: The question is the amendment on sheet 1231 as moved by Senator Carr be agreed to.
by leave—I move Greens amendments (1) to (4) on sheet 1127 together:
(1) Schedule 1, item 4, page 3 (line 16), omit "academic staff", substitute "staff engaged in academic activities".
(2) Schedule 1, item 4, page 3 (line 18), omit "academic staff", substitute "staff engaged in academic activities".
(3) Schedule 1, item 4, page 3 (line 22), omit "academic staff", substitute "staff engaged in academic activities".
(4) Schedule 1, item 4, page 3 (line 25), omit "academic staff", substitute "staff engaged in academic activities".
I foreshadowed these amendments in my speech in the second reading debate. These amendments will ensure that the academic freedom provisions apply not only to those university workers who are considered academic staff but to those across the institution who may undertake academic activities, including teaching, scholarship and research. As I said in my speech on the second reading, at a modern university much academic work is undertaken by others in the university system who may not be classified as or considered academic staff. They can include research assistants and other professional staff who may from time to time deliver lectures, engage in research or otherwise contribute to the academic activities of the institution. These amendments will extend the academic freedom provisions to more people doing academic work on our campuses and not necessarily confine their operation to a limited cohort of university workers. I commend the amendments to the Senate.
These amendments would expand the scope of academic freedom protection to all staff who engage in academic work beyond what their substantive employment classification would normally be. These amendments are practical ones. They have been moved on the basis that they ensure academic freedom applies based on the nature of the work being undertaken, not on the way in which the staff are actually classified. We know that many workers in our universities are employed as professional staff, whether they be in university laboratories or in libraries, and that they engage themselves in research projects and the like; therefore Labor will support these amendments and the proposition that lies behind them.
The government does not consider that the Greens amendments would broaden the scope of academic staff in relation to academic freedom principles and policies beyond what is already provided for in the bill. The government expects that all universities will adopt and implement the model code and that its principles and definitions will flow down into all other university policies, and this includes the broad definition of academic staff proposed by Mr French, which is that academic staff are 'all those who are employed by the university to teach and/or carry out research and extends to those who provide, whether on an honorary basis or otherwise, teaching services and/or conduct research at the university'.
Universities themselves have committed to adopt the model code. The government is confident that universities understand academic freedom applies to all academic activity, not just to staff who may be narrowly designated as academic staff within an enterprise agreement. The government will not be supporting these amendments.
The CHAIR: The question is that the amendments (1) to (4) on sheet 1127 as moved by Senator Faruqi be agreed to.
I move One Nation amendment (1) on sheet 1216 revised:
(1) Schedule 1, page 3 (after line 12), after item 3, insert:
3A At the end of Subdivision 19-G
19-120 Provider's enterprise agreement to uphold freedom of speech and academic freedom
A higher education provider that is a *Table A provider or a *Table B provider must take reasonable steps to ensure that:
(a) any enterprise agreement under which academic staff of the higher education provider are employed includes provisions to uphold the freedom of speech and academic freedom of the provider's academic staff, consistent with the provider's policy under section 19-115; and
(b) no other provisions of such an enterprise agreement, or other policies or codes of conduct of the higher education provider, restrict or burden those freedoms of the provider's academic staff otherwise than in accordance with the provider's policy under section 19-115.
I acknowledge that universities are required to enshrine in their policy statement clear messages around freedom of speech and academic freedom. While we can't intrude upon the enterprise agreements between universities and their employees, the amendment I put forward today requests that higher education providers take reasonable steps to ensure that enterprise agreements include provisions to uphold freedom of speech and academic freedom. This commitment to academic freedom needs, wherever possible, to move beyond the policy statement that sits on the shelf gathering dust into the enterprise agreements, where it drives behaviour, since that is where cultural change will be brought about. It is not just policies but actions and behaviours that need to be changed.
This is a proposition that, I'm afraid, hasn't been thought through in any great depth. This is a matter that's at the core of the High Court proceedings at the moment in regard to the Ridd matter. These are questions that go beyond the issue of free speech protections. They can't be overridden by other important workplace protections such as antidiscrimination legislation and policies of workplace occupational health and safety, or, for that matter, on measures such as hate speech and questions in regard to the incitement of violence. These are not matters that can be overridden in regard to discrimination or defamation. For a senator to suggest that we should do that is an extraordinary proposition.
These measures are quite important to the way in which universities function. As the chair of Universities Australia made clear, it goes to the question of the way in which academics communicate with one another as much as anything else. They are communities where you're able to impart fundamental knowledge and skills and to pass that on to new generations, and where you are able to vigorously debate matters—uncomfortable matters—but to do so with respect and courtesy and compassion and an understanding that you are expected to act in an expert and coherent manner. I'm afraid that, in the situation that has led to the circumstances in regard to James Cook University, those matters were absent. It wasn't a freedom of speech issue at all; it was a question about the way in which people sought to operate outside their areas of knowledge, their critiques, their dialogue, their capacity to treat each other. It goes to all the other matters I have mentioned, to important workplace protections that exist for all employees within the university system.
So Labor is not going to support this amendment. It's been ill-considered. It's part of an ideological obsession rather than a proper consideration of how we should ensure that our universities are run properly and are able to do their job properly for the advancement of the nation.
The Greens are supportive of strong enterprise bargaining agreements developed with higher education workers and their unions. We are supportive of enterprise agreements that clearly protect academic freedom. But we are not supporting this amendment. Any legislative steps to ensure that academic freedom is incorporated into enterprise agreements should be treated with sensitivity and must be carefully considered before being brought into parliament.
This amendment was circulated just a few hours ago. As far as I know, Senator Roberts has not even consulted the National Tertiary Education Union about the implications of this amendment. Moreover, there is a clear need so far, Senator Roberts, as it relates to enterprise agreements, to distinguish academic freedom provisions from broader protections with respect to freedom of speech, and this amendment does not do that.
The government will not be supporting this amendment, although it thanks One Nation for proposing it and respects the sentiment behind it. Employers and employees are free to make enterprise agreements which include terms that pertain to the employment relationship. The proposed amendment seeks to constrain university employers' and employees' ability to freely agree to the terms and conditions of employment in their enterprise agreement. It also seeks to constrain the standards and policies that universities may set in relation to freedom of speech and academic freedom. Item (b) of the proposed amendment is also unnecessary, as in practice it simply reflects the operation provisions in Mr French's proposed model code on freedom of speech and academic freedom. Effectively, the amendment proposes that other institutional policies should reflect and be consistent with the institution's policies on freedom of speech and academic freedom, which the government expects will be consistent with the model code.