RUTHFULLY YOURS

The Australian government has announced that an independent review of free speech on university campuses will be undertaken by the Hon Mr Robert French AC, former Chief Justice of the High Court of Australia and current chancellor of the University of Western Australia, will be reviewing existing material, including codes of conduct, enterprise agreements, policy statements and strategic plans.

The review comes after a series of controversies on campuses across Australia, where students and academic staff have been accused of stifling public debates. This is also followed by an extensive research by the Institute of Public Affairs (‘IPA’).  In 2017, the IPA recommended that Australian universities adopt the Chicago Statement or a similar declaration.

The Chicago Statement recognises free speech on campus as an issue that carries the core mission of every university as a place of learning. It defends free and open inquiry in all matters, and guarantees the broadest possible latitude to speak, write, listen, challenge and learn. The Statement works as a set of guiding principles intended to demonstrate a strong commitment to freedom of speech and freedom of expression on college campuses.

The Foundation for Individual Rights in Education reports that 57 American colleges and universities across the country have committed themselves to the principles of the Statement (or modelled their own based on similar goals), including Princeton University, John Hopkins University, State University of New York, George Mason University, and Brandeis University.

The Chicago Statement accepts the comments once made by Hanna Holborn Gray when she served as President of the University of Chicago, from 1978 to 1993, the first female academic in the US to hold the full presidency of a major university. While serving as president of the University of Chicago, Professor Gray famously stated:

Education should not be intended to make people comfortable, it is meant to make them think. Universities should be expected to provide the conditions within which hard thought, and therefore strong disagreement, independent judgement, and the questioning of stubborn assumptions, can flourish in an environment of the greatest freedom … The tendency to rule making, as in the case of speech codes designed to avoid unpleasantness and distress, elevates the model of the social community at the expense of the intellectual freedom central to a university’s life.

The Chicago Statement reminds us that ‘the preservation and celebration of the freedom of expression [is] an essential element of the university’s culture’. It also informs that another President of the University of Chicago, Robert M. Hutchins, correctly reminded us that the best cure for ideas we may strongly disagree or find personally offensive, ‘lies through open discussion rather than through inhibition’.

About the Author of the Review 

As mentioned above, French was appointed by the federal government to conduct such a review of free speech. In an address delivered in Darwin’s Parliamentary House on September 17, 2018, our former Chief Justice warns universities face the risk of legislative intervention unless they provide a more robust defence of free speech on campus.

French rejects what he describes ‘an extended concept of safety’ to justify restrictions on what can be discussed on campus. He argues that university administrators, academics and student bodies must be required to overcome ‘a very high threshold’ before seeking to prevent speech on campus by reference to its content. According to him, ‘to the extent that universities, operating under the authority of acts of parliament which create them, make legal rules affecting freedom of speech, those rules would have to comply with the implied [constitutional] freedom [of political communication]’.

This argument accords with that made by Joshua Forrester, Lorraine Finlay, and myself in an article published in the UWA Law Review (Finding the Streams’ True Sources: The Implied Freedom of Political Communication and Executive Power). There we argued that the implied freedom of political communication is to be treated as a relevant consideration when exercising executive power.

The Legal Framework

Under the Higher Education Support Act 2003 (Cth), universities are required to have ‘a policy that upholds free intellectual inquiry in relation to learning, teaching and research’. Furthermore, the Higher Education Standards Framework 2015 (Cth) requires a commitment to free intellectual inquiry, as it states

The higher education provider has a clearly articulated higher education purpose that includes a commitment to and support for free intellectual inquiry in its academic endeavours.

In addition, Australia’s primary higher education regulatory agency, Tertiary Education Quality and Standards Agency (TEQSA), in its 2017 Diversity and Equity guidance note, declares: ‘Measures taken to accommodate diversity should not contravene the pursuit of intellectual inquiry, and more generally, freedom of expression’.

Unfortunately, however, one can provide numerous examples of suppression of freedom of speech and academic freedom in Australia’s universities. According to the IPA’s Free Speech on Campus Audit 2018, 81% of Australia’s universities effectively stifle academic inquiry and intellectual debate by restricting free speech, with just one university, the University of New England, fully supporting free speech on campus. The report highlights a number of instances where university policies violate free speech and academic inquiry.

As noted by IPA research fellow Matthew Lech, there is a ‘disturbing’ number of university students ‘feeling too uncomfortable to express their viewpoints, aggressive activists policing language and interrupting events, and academics dictating what opinions can and cannot be expressed’. Such a failure to protect free speech, writes Lech, ‘is seriously imperilling the discovery of truth, the core purpose of Australia’s universities; student development, which requires debate and challenge; and the future of Australian society, which depends on a tolerance and openness to debate’.

Perhaps not surprisingly the academic elite are unsupportive of the French Review. They accuse the education minister of ‘jumping on the wrong conclusions, based on misleading and selective media reports’. For instance, Professor Glyn Davis of the Australian National University warns the government that he and his academic peers ‘do not welcome the importation of legislative responses and codes of conduct written in the United States against the Constitution and laws of that nation’. “Those who claim a free speech crisis on campus must establish their case – to them falls the burden of proof,” Davis says.

I am happy to oblige, thank you very much. What follows is a general account of instances where free speech and academic freedom have been suppressed in Australian universities.

Sydney University’s Excessive Fee for “Controversial” Talk: Bettina Arndt is a prominent Australian sex therapist, journalist and clinical psychologist. She is presently on that national tour on the talk “Is there a rape crisis on campus?”, which seeks to debunk claims that Australia’s universities are a hotbed of sexual assault against female students. Having accepted $1 million from ‘Universities Australia’, the Australian Human Rights Commission conducted a survey that could provide data which conformed to the ‘university rape culture’ narrative of the feminists. And yet, the survey found that only 1.6 per cent of students reported had been sexually assaulted in a university setting in 2015-16.

Although Bettina was supposed to be speaking at Sydney University on September 11, 2018, her attempts to speak on campuses have been subject to what has been described as a campaign of ‘mounting harassment … official delay, and obstruction’. The Sydney University administrators stalled for 12 days the organiser’s application for a venue, claiming the application was being processed. Then that university decided to allow for the talk to go ahead but announced the event organisers, the Liberal Club students, would be very heavily charged for security. Vice-Chancellor Michael Spence presented them an exorbitant bill, plus the room hire.

The Sydney University Liberal Club’s President wrote to the vice-chancellor on August 24, 2018, asking for the university to waive the security costs as a sign of support for controversial discussions on campus. He accused Dr Spence of hypocrisy for outwardly welcoming freedom of speech but hindering debate with the costs of security to deal with protestors. ‘It is just hypocritical for Dr Spence to talk about the importance of free speech yet be so willing to put a price block on conservative students having events. He’s being held hostage by the politically correct … it’s as if he’s happy to financially shut us down’, the letter stated.

Because the Liberal Club students courageously challenged the university administration, the event finally went ahead without them paying for security, with Dr Spence ‘being informed that it is his responsibility to ensure unruly students do not disturb the event’.

That event turned ugly when protesters led by the student’s Wom*n’s Collective prevented Bettina and others from entering the venue.  She was due to speak to about 90 people, but only a few managed to get past the crowd. Others were stuck outside trying to get through while up to 40 student protesters blocked the corridor leading to the talk. The riot squad was then called. A video records those protesters intimidating other students and blocking the corridor.

UWA’s Cancellation of Academic Talk: Dr Quentin Van Meter is clinical associate professor of paediatrics at both the Emory University and Morehouse schools of medicine. He is also president of the American College of Paediatricians (ACP). Dr Van Metter is known for rejecting the “science” around transgender people and for his opposition to gender reassignment of children. He argues that the transgender movement is based on ideology rather than real science, and has regularly explained the problems with ‘proven science’ surrounding transgender people.

On August 17, 2018, his lecture was cancelled by the University of Western Australia (UWA) after the  Student Guild launched a petition calling on the event’s cancellation.  The Student Guild president, Megan Lee, welcomed such a cancellation: ‘We want to make clear to the university that students in the Student Guild do not believe there is a place for hate speech on campus … a university is not an appropriate place for those discussions’, she said.

However, the Australian Medical Association of Western Australia (AMA-WA) said it did not agree with the decision to suppress academic learning and freedom of discussion. ‘We do not want to shut down discourse on these topics, and universities are the best placed institutions to discuss conflicting ideas’, AMA president, Oma Khorshid, stated.

The basis for the denial of venue was that organisers were not able to guarantee a risk-free environment for attendees. The University Campus Management team started (a last minute) demand for a ‘robust event management plan’ on the grounds the risk surrounding the event had been ‘elevated to a higher level’. Dr Kevin Woods, who was a pro vice-chancellor at Murdoch University from 1999 to 2001, deeply contests such a decision. According to him,

As former senior executive of a major university it is my experience that it is well within the resources of UWA to ensure the safety of attendees. Rather than allow this event to proceed, the university has again succumbed to the wishes of the Left-leaning student guild. It apparently garnered more than 6000 thousand signatures to a petition opposing Dr Van Metter being allowed a venue on the basis of his speech being classified as “hate speech”. It is becoming more prevalent in our society that anyone who expresses an opinion opposed to the “progressive” Left is to be demonised as a person espousing hate speech, rather than being treated as a person expressing their right to free speech.

The capitulation of the UWA in cancelling this academic lecture by a renowned paediatric endocrinologist, all because the Student Guild did not entirely approve it, reveals that our universities are not fully committed to the principles of free speech and academic freedom. Indeed, that university was unwilling to provide a venue so that people could respectfully listen to all sides of an argument before coming to a reasoned conclusion.

Rejecting the Study of Western Civilisation: Adding to the barrage of powerful university administrators questioning whether the French Review is necessary is Australian National University’s vice-chancellor, Brian Schmidt. “I expect the status quo to be retained – ANU, at least, is a place which welcomes discussions on issues made in good faith by our staff, students and invited experts,” he told Fairfax Media. Professor Schmidt should be reminded about the notorious decision of his university to pull out of negotiations with a wealthy private donor, the Ramsay Centre for Western Civilisation, over funding for a scholarship and teaching program.

On April 30, 2018, the website of the ANU College of Arts and Social Sciences was indicating the university would be in control in any deal with the Ramsay Centre. Apparently this was not good enough because, as noted by law professor James Allan and others, Australian academics, especially in the arts and social sciences, have developed a sort of anti-intellectual hatred for anything about Western culture and values.

It is deeply regrettable that ANU has tarnished the reputation of Australian universities by refusing to host a course on Western Civilisation. In so doing, writes Greg Sheridan, ANU has shown beyond any possible doubt how illiberal, intolerant and anti-Western such universities in Australia have become.

The problem is not restricted to ANU. The media recently reported that the University of Queensland has also rejected the creation of such a centre to study Western Civilisation. When the University of Sydney commissioned a senior academic to prepare a draft of a potential course in Western Civilisation, such a proposal sparked a backlash and Sydney academics reacted furiously to the news, with more than 100 signing an open letter to the vice-chancellor recording their opposition to any academic arrangement with the Ramsay Centre.

UWA’s Rejection of the Australian Consensus Centre: In April, 2015, the University of Western Australia (UWA) announced it had secured $4 million in federal government funding to establish an Australian Consensus Centre to undertake ‘detailed economic cost benefit analysis into many of Australia’s, and the world’s biggest challenges’. The university initially embraced the opportunity, with Vice-Chancellor Professor Paul Johnson stating:

The Centre is unique in that it’s to deliver a robust, evidence-based knowledge and advice to the Australian Government on potential policy reforms and other interventions that will deliver the smartest, most cost-effective solutions in areas ranging from poverty, social justice and food sustainability. Many of these issues will form the basis of the United Nation’s post 2015 Development Goals.

The university eventually decided to cancel the contract for the policy centre. The reason for the cancellation was that the Danish environmentalist, Bjørn Lomborg, was invited to be head of the centre. He is deemed controversial for arguing that the risks of climate change have been overstated, and that it is more important to tackle problems such as malaria, extreme poverty and pollution.

UWA Academic Staff Association vice-president Professor Stuart Bunt stated on the occasion that the project would never be tolerated. “[Lomborg] is not a scientist or an economist, he’s a political scientist”, he opined, and “would be using the name of the university, to put what are largely political opinions, rather than evidence-based statements, using the university’s name.”

The statement was contradicted by Professor Johnson, who informed that Lomborg is actually a leading environmental scientist and perfectly qualified for that academic position:

I believe that a man who has worked with many Nobel Laureate economists, has been named one of Time magazine’s most influential people, and has published with Cambridge University Press, meets the criteria of being made an Adjunct Professor—an honorary position that carries no salary.

Despite this, Professor Johnson went ahead with the cancellation on grounds that the strong opposition by academic staff and students had ‘placed the University in a difficult position.

He stated:

It is with great regret and disappointment that I have formed the view that the events of the past weeks places the Centre in an untenable position as it lacks the support needed across the University and the broader academic community to meet its contractual obligations … The work of the Australia Consensus Centre is important to Australia’s future by engaging in important discuss and economic analysis about how we ensure future generations are better off than those that came before them. Unfortunately, that work cannot happen here.

There are a number of cases where traditionally-minded opinions, ideas, and statements which are legal in society at large have been suppressed on university campus.  At James Cook University, for example, Dr Peter Ridd was sacked last year after he made a statement challenging the quality of science which claims the Great Barrier Reef is being damaged by climate change. As Dr Ridd points out, “it is far too risky for an academic to engage in any controversial debate that might upset the university hierarchy that … has all the power to crucify any transgression.”

This is why I warmly welcome the French Review on the effectiveness of university policies and practices to address the requirements of the Higher Education Standards Framework to promote and protect freedom of expression and intellectual inquiry on Australian campuses. If our universities are to remain valuable institutions of high learning, they must become a sanctuary for serious debate of unorthodox ideas. To achieve this precise goal, our universities should adopt the Chicago Statement or a similar declaration which recognises freedom of speech as an issue that should go to the core mission of every university as a place of high learning and intellectual inquiry.

Augusto Zimmermann LLB (Hon.), LLM cum laude, PhD (Mon.) is Professor and Head of Law at Sheridan College in Perth, Western Australia, and Professor of Law (Adjunct) at the University of Notre Dame Australia, Sydney campus. He is also President of the Western Australian Legal Theory Association (WALTA), and a former Commissioner with the Law Reform Commission of Western Australia (2012-2017). Dr Zimmermann is also the recipient of the Vice-Chancellor’s Award for Excellence in Research, Murdoch University (2012).