Speech code may have unintended consequences

The final report of the independent review of freedom of speech in Australian higher education providers was submitted to Education Minister Dan Tehan in March.

The full report, by former High Court chief justice Robert French, extends to 300 pages and includes a thorough review of the status of freedom of speech in Australia and other countries, the legal background and higher education policies.

At the end of the report an admirably concise six-page draft model code is proposed. Ironically, given the background to the review, some ¬clauses in the model code — aimed at promoting freedom of speech at universities — may be more constraining than liberating.

While UNSW Sydney has expressed support for the laudable aims of the model code, there are several elements that require scrutiny. As it stands, the code appears in parts to propose a significantly more restrictive frame¬work than the policies in place at my university.

At UNSW we are firmly committed to protecting freedom of speech and we believe universities have played, and should continue to play, a key role in doing so.

My starting principle when considering such issues is that whatever can be uttered in the public domain also should be able to be discussed in an open forum on campus. There must be powerful reasons to allow any greater restriction of freedom of speech on the campus compared with the street outside.

The draft model code provides several principles. One of these allows the university to “refuse permission to any invited visitor or external visitor to speak on university land or at university facilities where the content of the speech is or is likely to” meet three different circumstances.

The first of these circumstances is when the speech is likely to “be unlawful”. This is a sound and easily acceptable rationale for limiting freedom of speech. It includes, for example, the discrimination and vilification laws, which apply across society, including in the university environment.

The other two circumstances are less straightforward and if adopted could lead to universities declining access to speakers they would currently host.

These two clauses allow for refusal of a speaker if the speech is likely to “prejudice the fulfilment by the university of its duty to foster the wellbeing of staff and students; (or) involve the advancement of theories or propositions which do not meet scholarly standards to such an extent as to be detrimental to the university’s character as an institution of higher learning”.

The duty of the university to the wellbeing of staff and students is defined earlier on page three of the draft model code and includes ensuring there is no “unfair disadvantage … unfair adverse discrimination … threatening or intimidating behaviour … or lawful speech which is intended to insult, humiliate or intimidate”.

Giving universities the right to use these “wellbeing” and “scholarly” reasons for refusing permission to speak substantially expands the grounds that currently exist — and this must surely be at odds with those seeking reform in this space.

These points will doubtless be part of the feedback on the draft model code, including that of the three chancellors — French, Gareth Evans and Peter Varghese — who have indicated that they are working on refining the code.

It could be argued, for example, that it would be detrimental to the reputation of the university to allow a person using university premises to make unscientific claims about the efficacy or side effects of a health intervention; or that such statements could insult, threaten or humiliate so as to compromise wellbeing.

When would allowing such a speaker cross the threshold from being irritating to prejudicing our duty to students and staff? Who is going to decide what is sufficiently scholarly to be acceptable?

Can a non-scholarly view expressed on the university campus, but not endorsed by the univer¬sity, really be regarded as damaging to the university’s character?

How can consistency from university to university — and from time to time — possibly be achieved? And if the university were to attempt to play the role of arbiter, would it ultimately lead to self-censorship; perhaps the overriding concern of those worried about free speech on campus?

And what if Israel Folau were invited to speak? If the draft model code were adopted it might be argued that his views — now the subject of vigorous community debate on freedom of religion and freedom of speech — would violate the wellbeing of some members of the university community.

The price of protecting freedom of speech is that some are likely to object to, or be insulted by, the views that will be expressed. At present our approach at UNSW would be to allow speakers to express their views, within legal constraints, even though they would be likely to offend or upset some in the university community.

Overall, these clauses will not only be complex to apply but are also likely to lead to less, not more, freedom to speak at UNSW Sydney. I favour continuing our approach of allowing speakers to say whatever they want, so long as the views expressed are lawful.

In such cases UNSW has the right, as it has done in the past, to expressly disassociate itself from the statements of those speakers. Students and staff who don’t like what is being said also have the right to make their views clear and to host alternative forums. This approach ensures a vibrant, open approach that protects freedom of speech in line with the freedom afforded to the rest of society.

There is another important aspect to the debate about freedom of speech. While it is right to be vigilant about campus life, where is the commensurate debate about the wider issue of censuring of freedom of speech and expression in the broader community? It is not the university rules that restrict free speech but legal restrictions that impose more powerful limits on what people speaking at the university are allowed to say.

As UNSW dean of law George Williams recently wrote in The Australian, why is there not greater debate and concern about defamation laws that stifle the rights of the media to express themselves more freely, without fear of unwarranted censure? What about the fundamental absence of a bill of rights, and a broader freedom of speech law, that enshrines a basic freedom principle for all Australians?

Freedom of speech is so important that it reaches far beyond the campus perimeter. Univer¬sities are only too ready to continue their longstanding commitment in that quest. The protection of speech freedom should apply uniformly across society without different requirements for different institutions or sectors such as higher education.