Freedom of speech, academic freedom and its limits

Some thoughts

I haven’t been around much lately as I came down COVID and I had several conference papers to write and presentations to make. Fortunately I am better, apart from a post-viral cough and a little tiredness.

I have been thinking deeply about freedom of speech and academic freedom for the last few weeks. First, I have been wondering how we give more effective remedial “teeth” to academic freedom rights. In other words, if academic freedom is breached, can we seek a court remedy?

Secondly, we have had protest encampments at our university for some weeks, relating to the conflict in Gaza. Recently, protesters occupied the Arts West building on our campus, preventing staff and students from accessing that building, and demanding that university leadership cut certain investments and ties with Israel. After extended negotiations, the protesters at the University of Melbourne have agreed to disband the encampments and the occupation.

Photo by Gareth Harrison on Unsplash

I am aware that some of the things I say on this blog are critical at times of academia, and could be perceived as criticisms of the Law School or university management.

I love Melbourne Law School and the University of Melbourne. I did my undergraduate degrees and postgraduate degree at the University of Melbourne. I have been a devoted member of staff at Melbourne Law School since 2006. This career trajectory is unusual in the legal academy, where people are often expected to do undergraduate and postgraduate qualifications at different universities.

This is precisely why I am sometimes critical. The opposite of love is indifference. If I did not care about my university, my Law School, and my students, I would be indifferent. I try at all times to be constructive, and to give suggestions for change. I am, after all, a remedies lawyer. I want to fix things, with a passion.

Moreover, the problems I describe are not unique to my law school or my university. As far as I can see, they are systemic and worldwide. I receive private messages from academics across the globe saying that their situations are similar. I believe there is something wrong with the incentives in academia right now. We’ve lost sight of our core mission: the pursuit of truth, the guardianship of existing knowledge, and the teaching of future generations. In part, we’re following Ezra Pound: “Make it new.” Everything must be transformative and innovative.

To this I’d say not everything has to be a breakthrough, and our role is also to be custodians of knowledge (I just attended a talk by Jonathan Rauch where he reminded me of the importance of knowledge). Added to this, we’ve also turned students into consumers, and universities into giant profit-making corporations. As I’ve noted before, I don’t like this.

After a friend chided me gently for being publicly critical—apparently I am more widely read than I realise—I looked into my university’s policies covering academics who are critical of university leadership. What I found was very reassuring, and made me proud of my university. See, I can give credit, where credit’s due!

As I’ve noted before, following the recommendations of the French Review,¹ higher education institutions are required to have policies protecting the right to freedom of speech and academic freedom by s 19-115 of the Higher Education Support Act 2003 (Cth) (‘HESA’). “Academic freedom” is defined in Schedule 1 of HESA as:

(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.

[my emphasis added]

And the University of Melbourne has such a policy, MPF 1224, as required by s 19-115:

Right to academic freedom of expression

4.1.    A core value of the University of Melbourne is to preserve, defend and promote the traditional principles of academic freedom in the conduct of its affairs, so that all scholars at the University are free to engage in critical enquiry, scholarly endeavour and public discourse without fear or favour.

4.2.    Accordingly, the University supports the right of all scholars at the University to search for truth, and to hold and express diverse opinions. It recognises that scholarly debate should be robust and uninhibited. It recognises also that scholars are entitled to express their ideas and opinions even when doing so may cause offence. These principles apply to all activities in which scholars express their views both inside and outside the University.

4.3.    The liberty to speak freely extends to making statements on political matters, including policies affecting higher education, and to criticism of the University and its actions.

4.4.    Scholars at the University should expect to be able to exercise academic freedom of expression and not be disadvantaged or subjected to less favourable treatment by the University for doing so.

Responsibilities of scholars in exercising academic freedom of expression

4.5.    Like all rights, the right to academic freedom of expression carries responsibilities. Scholars may hold their own views and speak freely on all topics, even outside their expertise, and even identifying themselves as members of the University. However, if they speak in public on topics outside their expertise, they should consider whether it is reasonable in the circumstances to link their comments to their association with the University.

4.6.    Academic freedom of expression is subject to the following principles:

(a)    all discourse must be undertaken reasonably and in good faith; and

(b)   all discourse should accord with principles of academic and research ethics, where applicable. For example, reasons should be given for an argument so that those who wish to respond have a basis to do so and speakers may need to state affiliations (including speciality), sources, funding and potential conflicts of interest. The University recognises that these principles may vary according to the context in which the discourse occurs.

[my emphasis added]

Clearly, the right to criticise management and university policy is covered by the policy and HESA.

The Higher Education Framework (Threshold Standards) 2021 (Cth), as s 6.1(4) states that the governing body of a university must “take steps”:

…to develop and maintain an institutional environment in which freedom of speech and academic freedom are upheld and protected, students and staff are treated equitably, the wellbeing of students and staff is fostered, informed decision making by students is supported and students have opportunities to participate in the deliberative and decision making processes of the higher education provider.

But please note that the Standards contemplate a balancing act between freedom of speech and academic freedom on the one hand, and ensuring the wellbeing of students and staff on the other. Keep that in mind.

I considered whether the tort of breach of statutory duty could be made out if a university failed to uphold its obligations to protect academic freedom. My conclusion was no. The obligation to have a policy has been met by most or all higher education providers. And the duties imposed are not specific enough, nor sufficiently targeted to benefit a particular group of persons (namely, academics).

Then I had a look at contract, and more specifically, the 2024 Enterprise Bargain Agreement between our university and our unions as representatives of employees:

2.13 ACADEMIC FREEDOM

2.13.1 The Parties shall act in a manner consistent with the protection and promotion of Academic Freedom within the University as set out in the University’s Academic Freedom Policy [MPF1224].

2.13.2 The University promotes and protects Academic Freedom as set out separately in the University’s Academic Freedom Policy [MPF1224] and the Higher Education Support Act 2003 (Cth).

2.13.3 Other than for the purposes of enhancing the protections for Employees set out separately in section 4 of the University’s Academic Freedom Policy [MPF1224], the Parties agree that the Academic Freedom policy in place at the conclusion of bargaining will not be reviewed, amended, or rescinded during the life of the Agreement.

2.13.4 The University will have regard to the principles of Academic Freedom when assessing, determining, and actioning matters set out in this Agreement relating to performance, academic non-confirmation and, pursuant to clause 1.39.3, misconduct.

2.13.5 For Academics misconduct and serious misconduct does not include conduct by an Academic that complies with the principles of Academic Freedom as set out separately in University Policy.

Disputes pertaining to Academic Freedom

2.13.6 Subject to clauses 2.13.7 and 2.13.8, grievances arising from the application of the University’s Academic Freedom policy may be referred to the Grievance and Dispute Settlement Procedure as set out at clause 1.42.

2.13.7 During the life of this Agreement, the University will consult Employees and the Unions on the University’s continuing work to establish an Academic Review Panel to provide impartial advice to the University on the application of the Academic Freedom policy across the University. Once established, grievances arising from the application of the University’s Academic Freedom policy may be referred to the Academic Review Panel in the first instance in place of the dispute procedure steps set out at clauses 1.42.7.1 and 1.42.7.2.

2.13.8 Nothing in this clause confers arbitral powers on the Fair Work Commission to determine matters relating to the content, composition, interpretation and application of the University’s Academic Freedom policy.

This clause gives the academic freedom obligations contained in the university’s Policy far greater “teeth”. First, each side promises to act in accordance with the policy (cl 2.13.1). Secondly, the policy is not to be amended or repealed (cl 2.13.3). In assessing academic misconduct and the like, cl 2.13.4 requires the university to have regard to its academic freedom policy and conduct which complies with the policy is not academic misconduct (cl. 2.13.5). There is also a procedure for resolving grievances over academic freedom, and a proposed Academic Review Panel (cl 2.13.7).

Therefore, if an academic were threatened with termination for conduct which fell within the ambit of the academic freedom policy and the permissible conduct outlined there, it would likely be difficult for the university to terminate them for That alone.

This deals with the dismissal of controversial academics, but it doesn’t cover “no-platforming”, or protests by militant student bodies which interfere with academic freedom. To find laws which deal with this, we have to go to the United Kingdom. Last year, a new Part A1 was introduced into the Higher Education and Research Act 2017 (UK), by the Higher Education (Freedom of Speech) Act 2023 (UK). Section A1 creates a duty on higher education providers to support freedom of speech:

A1 Duty to take steps to secure freedom of speech

(1)   The governing body of a registered higher education provider must take the steps that, having particular regard to the importance of freedom of speech, are reasonably practicable for it to take in order to achieve the objective in subsection (2).

(2)   That objective is securing freedom of speech within the law for—

(a)   staff of the provider,

(b)   members of the provider,

(c)    students of the provider, and

(d)   visiting speakers.

(3)   The objective in subsection (2) includes securing that—

(a)   the use of any premises of the provider is not denied to any individual or body on grounds specified in subsection (4), and

(b)   the terms on which such premises are provided are not to any extent based on such grounds.

(4)   The grounds referred to in subsection (3)(a) and (b) are—

(a)   in relation to an individual, their ideas or opinions;

(b)   in relation to a body, its policy or objectives or the ideas or opinions of any of its members.

(5)   The objective in subsection (2), so far as relating to academic staff, includes securing their academic freedom.

(6)   In this Part, “academic freedom”, in relation to academic staff at a registered higher education provider, means their freedom within the law—

(a)   to question and test received wisdom, and

(b)   to put forward new ideas and controversial or unpopular opinions,

without placing themselves at risk of being adversely affected in any of the ways described in subsection (7).

(7)   Those ways are—

(a)   loss of their jobs or privileges at the provider;

(b)   the likelihood of their securing promotion or different jobs at the provider being reduced.

(8)   The governing body of a registered higher education provider must take the steps that, having particular regard to the importance of freedom of speech, are reasonably practicable for it to take in order to achieve the objective in subsection (9).

(9)   That objective is securing that, where a person applies to become a member of academic staff of the provider, the person is not adversely affected in relation to the application because they have exercised their freedom within the law to do the things referred to in subsection (6)(a) and (b).

(10) In order to achieve the objective in subsection (2), the governing body of a registered higher education provider must secure that, apart from in exceptional circumstances, use of its premises by any individual or body is not on terms that require the individual or body to bear some or all of the costs of security relating to their use of the premises.

(11)In order to achieve the objective in subsection (2), the governing body of a registered higher education provider must secure that the provider does not enter into a non-disclosure agreement with a person referred to in that subsection in relation to a relevant complaint made to the provider by the person (and if such a non-disclosure agreement is entered into it is void).

(12)In subsection (11)—

“non-disclosure agreement” means an agreement which purports to any extent to preclude the person from—

(a)   publishing information about the relevant complaint, or

(b)   disclosing information about the relevant complaint to any one or more other persons;

“relevant complaint” means a complaint relating to misconduct or alleged misconduct by any person;

“misconduct” means—

(a)   sexual abuse, sexual harassment or sexual misconduct, and

(b)   bullying or harassment not falling within paragraph (a).

…

There are several things about this legislation which caught my eye:

1. Section A1(2) covers not only staff, but also students, members and visiting speakers.

2. Sections A1(3) and (4) try to deal with “no-platforming” by requiring that premises are not denied to any person based on their ideas and opinions.

3. Persons who can take advantage of this section should not lose their job or be adversely affected in getting a position elsewhere in the institution (s A1(7)).

4. The measures to uphold academic freedom must be “reasonably practicable”, according to s A1(8).

5. Sections A1(11) and (12) stop higher education providers from using non-disclosure agreements to prevent those who are subject to threats to their academic freedom from speaking out. As I have said before on this blog, the use of non-disclosure agreements by universities to prevent discussion of bad behaviour by academics is of concern. The section doesn’t deal with issue which faced Peter Ridd, the academic plaintiff in Ridd v James Cook University:² a general obligation of confidentiality was imposed by university processes, and which caused Ridd to ultimately fail in his High Court case, even though his academic freedom was upheld.

6. The legislation also places academic freedom duties upon constituent institutions (in s A4) and student unions (in s A5).

7. Section A7 (not reproduced here) ensures that these stipulations have “teeth”, through the creation of a statutory tort. In other words, it is possible to claim a civil remedy if anyone breaches academic freedom duties unfairly, without having to go through the difficulty of establishing breach of statutory duty. According to the UK Free Speech Union, this proved controversial.

I will watch with interest to see how this legislation works in practice in the United Kingdom.

Of course, others have been highly critical of university management in recent weeks, especially the protesters camped on various university premises. They have demanded that their respective universities divest from companies which supply Israel, cut off relations with Israeli universities, and end all investments, agreements and cooperation with companies involved in weapons research, manufacturing, or export.

It is clear, according to the policies above, that the protesters, whether staff or students, are free to express this opinion. In the State of Victoria, protesters also have statutory rights to free expression and to free assembly,³ and public authorities must respect those rights.⁴ On the other hand, as I’ve noted earlier, the university must balance these rights against the rights of other staff and students to have uninterrupted classes and safe access to all buildings, the wellbeing of students or staff, and the health and safety of its staff and students.⁵ And then there’s the vexed issue of how hate speech laws interact with protests.⁶

The other day I had a productive exchange on social media which made me think about the limits of the right to protest. I shared Maria O’Sullivan’s excellent piece in The Conversation on the care which must be taken with the disbanding of any encampments. The gist of the challenges I received could be summarised thusly: “Sure, I believe in freedom of speech and freedom of assembly, but if I wanted to set up a tent encampment protest in the park, I wouldn’t be allowed to. Does the right to freedom of expression and right to freedom of assembly mean that people can camp on university premises indefinitely?” One interlocutor (a firefighter) also noted concerns about health and safety and risks of fire.

Prompted by these challenges, I decided to have a look. First, I’m not allowed to camp in a park in Victoria, except in designated areas, and with a permit.⁷ The reasons for this include risks of fire, the problem of human waste and excreta, litter, and the possibility of damage to resources and facilities which should be available for all. I’m not a happy camper, sadly—my physical disabilities mean that I find it painful to lie on the ground to sleep—so I never had occasion to look at the law on this before.

Photo by Daniel Pelaez Duque on Unsplash

Secondly, does the right to freedom of expression and the right to free assembly give protesters a right to camp on property indefinitely and prevent others from entering communal buildings? I couldn’t discover any Australian case law, but I discovered an English case, dealing with provisions very similar to those in the Victorian Charter.⁸

In City of London v Samede & Ors,⁹ the City of London sought a mandatory injunction to require Occupy protesters camped outside St Paul’s Cathedral in London to vacate. The protestors had been encamped for over two months by the time the case came before the court. They argued this was protected as an expression of their rights to freedom of expression and free assembly.

Mr Justice Lindblom agreed that the protesters had statutory rights to freedom of expression and free assembly, but was prepared to award a mandatory injunction to the City of London. The extended duration of the protests were interfering with the access to the cathedral, infringing the rights of visitors and worshippers at the cathedral, and creating a private nuisance (i.e. demonstrably interfering with the right of enjoyment of other people occupying that space).

This can be compared with Director of Public Prosecutions v Ziegler,¹⁰ where protesters were convicted of wilful obstruction of the highway after they secured themselves to the road at the entrance to a venue hosting arms manufacturers. Their convictions were revoked, in part because the protest was time-limited and targeted. Samede was applied and approved by the UK Supreme Court.

Therefore, there is a strong argument that—while the speech contained in the protests is covered—the acts of extended encampment and occupation are not covered by rights to freedom of expression or freedom of association. These actions unduly interfere with the rights of other staff and students to work and study.

This is a reminder that, in my view, rights are defeasible,¹¹ and correlative. You don’t just have a right to do X. You also have an obligation to respect the rights of other people to do Y or Z, and our law involves a balancing of competing rights.

I confess that I’m always fascinated by how quickly protesters reach for freedom of speech, when I very much wonder how they would respect my right to a different view, if they had power to dictate my speech. It’s always struck me as ironic that discourse in these circumstances often seems to mean: “Rights for me, but not for thee.”

The rule of law means that any rights that are accorded to us by law should also be accorded equally to the groups with which we disagree.

1. Robert French, Independent Review of Freedom of Speech in Australian Higher Education Providers (Report, 27 March 2019) (‘French Review’).

2. [2021] HCA 32.

3. See Charter of Human Rights and Responsibilities 2006 (Vic), ss 14, 15 and 16, enshrining (respectively) a right to freedom of conscience, thought and belief, a right to freedom of expression and a right to freedom of assembly. See Art 21 and 22 of the International Covenant on Civil and Political Rights (ICCPR) and Art 8(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

4. Charter of Human Rights and Responsibilities 2006 (Vic), s 4. Let’s leave to the side the question of whether a university counts as a public authority.

5. See Charter of Human Rights and Responsibilities 2006 (Vic), s 7. A balancing act is also contemplated by Arts 21 and 22(2) of the ICCPR.

6. See eg, s 18C of the Racial Discrimination Act 1975 (Cth).

7. See Crown Land (Reserves) (Metropolitan and Regional Parks) Regulations 2023, s 32(1).

8. This means the case is persuasive but not binding on an Australian court.

9. [2012] EWHC 34 (QB) (18 January 2012). Permission to appeal to the Court of Appeal was refused in [2012] EWCA Civ 160.

10. [2021] UKSC 23,

11. ‘Defeasible right’ is used in the sense suggested in HLA Hart, ‘The Ascription of Responsibility and Rights’ (1948–1949) 49 Proceedings of the Aristotelian Society 171, 175. In other words, the law is a human creation and all its sources are human: statute, judge-made, and custom. This means all forms of law are bounded by public acceptance, including rights. Yes, I'm a Razian positivist.