Debate archives: Glynn Davis on academic freedom
Debate archives: Paul Mees - statement on academic freedom
Charter required to protect academic freedom
Prof. George Williams, Anthony Mason Professor at Law, University of New South Wales
Academic freedom is essential to the work of Australian universities. Their role in educating students and advancing human knowledge depends upon academics and students working and learning in an environment in which they can freely exchange ideas, challenge conventional wisdom and debate controversial issues.
While academic freedom is often stated in documents like in university collective agreements and codes of conduct, it has no generally accepted definition in Australia. At its minimum core, the freedom refers to a level of non-interference with an academic’s teaching, researching and publishing activities. Beyond this, the freedom cannot be readily defined from existing practice, nor can the responsibilities and limitations that attach to it.
In some countries academic freedom is protected by legislation or even in a national constitution. For example, the New Zealand Education Act 1989 and the Constitution of the Republic of South Africa 1996 provide protections for academic freedom. By contrast, Australia does not protect academic freedom in its Constitution or by statute, nor does it have a national bill of rights from which it might be implied.
The protection of academic freedom in Australia is limited. Collective agreements provide the main protection, but this is vulnerable. Such agreements are subject to change in federal industrial law, are renegotiated every few years, vary from university to university (with many not referring to the freedom at all). While there is the possibility of implying protection for academic freedom into employment contracts, this has yet to be tested and even if it did occur the level of academic freedom so implied may be minimal. Furthermore, any of these possibilities can be overridden by federal law. Such a law could displace the employment arrangements of a university or even any future recognition of academic freedom under State law.
Even though it has limited legal protection, academic freedom is still recognised in other ways. The current state of the law means that the freedom is mostly a set of conventions or assumptions for those who work in the university sector. As a result, academic freedom can be fragile and easy to breach. Its maintenance will often depend on the vigilance of those who work in universities and on the goodwill of those who have the power to undermine it.
Australian academics face the likelihood that academic freedom will continue to be whittled away over time as the existing threats continue and new threats emerge. Advocacy will have some success in minimising the loss of the freedom, but over time the freedom will be lessened. This highlights the need for a broader strategy. To protect academic freedom over the longer term we must realise it is part of larger debates about other important values in Australian public life. These include the independence of the public service and its capacity to provide government with fearless and frank advice and the ability of non-government organisations (and even charities) to engage in public advocacy and not lose their funding as a result. Attacks on these values are possible in part because Australia does not take seriously enough the need to protect some of our most important democratic rights.
Even freedom of speech has no secure protection in Australian law and instead depends upon the goodwill and good sense of the government of the day. When such goodwill is in short supply, or during a climate of popular fear, freedom of speech can be curtailed and with it a number of other important principles like academic freedom. If we do not take freedom of speech seriously, it is hard to argue for the maintenance of something like academic freedom.
The best way forward is not only to oppose specific threats to academic freedom but to support with a coalition of like interests broader reform to our system of government and to the legal rules. That reform should include the better protection of democratic freedoms through a national charter of human rights. Although such a law has been enacted in the ACT (Human Rights Act 2004) and Victoria (Charter of Human Rights and Responsibilities Act 2006), Australia remains the only democratic nation without a national law of this kind. Experience elsewhere shows that a Charter could give real protection to human rights like freedom of speech and could have a powerful impact in shaping public debate. While no such law provides the whole answer, and is not a substitute for ongoing political or industrial action, it would be a valuable tool in preventing the further erosion of academic freedom in Australia.
Reproduced from NTEU National Journal, Advocate, Vol. 15 No.5.
