CTH Senate Considers Higher Education Support Amendment (Freedom of Speech) Bill 2020 

Tuesday 2 March 2021 @ 12.00 p.m. | Legal Research

On 28 October 2020, the Higher Education Support Amendment (Freedom of Speech) Bill 2020 (Cth) (‘the Bill’) was introduced to the House of Representatives. On 24 February 2021, the Bill was passed without amendment by the House of Representatives. The Bill is currently being considered by the Senate.

Bill as Response to the French Review

The Bill is intended to support the implementation of the recommendations of the 2019 Report of the Independent Review of Freedom of Speech in Australian Higher Education Providers, undertaken by the Honourable Robert French AC (‘the Report’). The Report noted that while reported incidents in Australia do not indicate a systemic pattern within the higher education sector that is adverse to freedom of speech or intellectual inquiry, “even a limited number of incidents seen as affecting freedom of speech may have an adverse impact on public perception of the higher education sector which can feed into the political sphere.”

The Report observed in its conclusions that “constraints upon freedom of speech under the general law often require difficult judgments about which reasonable minds may differ” and the use of indeterminate language can produce challenges regarding interpretation and enforcement. At minimum, the Report recommended the adoption of a set of ‘umbrella principles’ operationalised in a non-statutory model code on freedom of speech and academic freedom by universities. Regarding the purpose of the model code, the Report states:

As a non-statutory code it would be applied to guide the exercise of powers and discretions, formal and informal, when their breadth allows for its application. Essentially, its purpose is effectively to restrain the exercise of overbroad powers to the extent that they would otherwise be applied adversely to freedom of speech and academic freedom without proper justification. 

The Minister for Education, Mr Dan Tehan (‘the Minister’), noted in his Second Reading Speech that “all universities have undertaken to adopt the model code, in a way that is consistent with their individual legislative frameworks.” The purpose of the Bill is to amend the language of the Higher Education Support Act 2003 (Cth) (‘HES Act’) to align with the language of the model code.

Proposed Amendments

If the Bill is assented, the Bill will make two amendments to the HES Act. Firstly, the Bill proposes to amend the HES Act by inserting a new definition of ‘academic freedom’:

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.

Secondly, the Bill intends to replace the existing term 'free intellectual inquiry' in relevant provisions of the HES Act with the concepts of 'freedom of speech' and 'academic freedom'.

Both amendments are intended to provide clarification and consistency for higher education providers. The Minister stated in his Second Reading Speech:

The consistency of language to be achieved by the measures in this bill will facilitate adoption of, and compliance with, the code, and provide for more consistent and transparent policies in relation to freedom of expression and academic freedom across the university sector, including key elements, principles, and any necessary limitations imposed on these freedoms.

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Higher Education Support Amendment (Freedom of Speech) Bill 2020 (Cth) and explanatory materials available on TimeBase’s LawOne service

Report of the Independent Review of Freedom of Speech in Australian Higher Education Providers (Robert French AC, 27 March 2019)

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