On free speech on campus, and why the French code will be no help

Following conservative hysteria after a short-lived student protest when Bettina Arndt’s ‘fake rape crisis tour’ came to Sydney University last year, many universities have now agreed to implement the code of practice developed by the former Chief Justice, Robert French, in his review of freedom of speech in higher education.

The code, which universities will either adopt outright or adapt, is designed to protect academic freedom and freedom of speech. It provides that, apart from some constraints which we’ll get to shortly, academics, students and other campus speakers can’t be subject to any penalty simply because of what they say. It also specifies that universities have no duty ‘to protect any person from feeling offended or shocked or insulted’ by the content of speech.

As everyone with a stake in the status quo has been at pains to emphasise, French rejected the claim that universities are experiencing any kind of free speech ‘crisis’. This has not deterred conservatives, who continue to demand an end to the supposed progressive tyranny in higher education. Dan Tehan, the federal education minister, has strongly urged universities to adopt the code.

Some mainstream commentators, too, have absurdly welcomed French’s proposals as a sensible antidote to the alleged risk of repressive left-wing groupthink on campus. Both groups need a reality check. Australian universities aren’t now, and don’t risk becoming, citadels of left-wing orthodoxy.

Take students. Like any other group, they have various foibles, but overpoliticisation is not one of them. As the French report confirmed, protest is extremely marginal on Australian campuses, and visiting speakers are hardly ever contested. That’s a real pity: vigorous and – if necessary – disruptive protest is a sign of a democratic and participatory political sensibility.

Neither, in my experience, are students prone to the kind of censorious ideological or identity-based sensitivities denounced in right-wing attacks on ‘snowflake’ culture. Those observers who – on the basis of a handful of anecdotes – have reached the conclusion that there is a general problem of this kind in universities are reporting fantasy, not fact.

As for academics, most are, or aspire to be, middle-class professionals. This exerts a strong mainstreaming influence on their views. As is obvious to anyone with even just average resistance to conservative delirium, the vast majority of academics are not remotely near the far left of the political spectrum, but firmly ensconced in the sheltering comfort of the centre.

In this context, it is telling that conservatives are trying to import a moral panic about ‘cultural Marxism’ and similar bogeymen from US campuses. For them, even the highly circumscribed progressivism currently found in universities is too much and must be suppressed. They are the ones exhibiting the authoritarianism and lack of tolerance for other views that they ascribe to progressives. It is definitive evidence of the stultifying and reactionary mood of current politics that anyone has taken them seriously.

When commentators endorse speech codes as a way to remove an imaginary left-wing threat to free expression on campus, the main effect is to reinforce the ‘extreme centre’ in Australian politics. If politically unadventurous universities can be demonized as the epicentres of dangerous progressive illiberalism, who would think that viewpoints that actually are radically left-wing, and necessarily so – environmental anti-capitalism, for instance – could ever possibly be acceptable?

Characterising staid university culture as being in the grips of a free-speech crisis shrinks the political spectrum by pushing genuinely left-wing alternatives right over the edge.

The current balance of forces in universities means that the French code will not promote free speech. The real threat to liberty of expression and inquiry on campus comes from the unconstrained power of senior university management to accept strings-attached funding, dismiss staff, discipline students and ban speakers. None of this will be affected by the code.

Even though the code protects speech that ‘offends’, ‘shocks’ or ‘insults’, it offers no safeguards for speech deemed ‘likely to humiliate or intimidate’. Nor does it protect the speech on campus of external speakers if it is deemed likely to fall ‘below scholarly standards to such an extent as to be detrimental to the university’s character as an institution of higher learning.’ Similarly, the code allows speech to be restricted by conditions ‘imposed by the reasonable and proportionate regulation necessary to the discharge of the university’s teaching and research activities,’ and says that universities only have to take all ‘reasonable’ steps to ‘minimise’ restrictions that flow from partners or donors.

These definitions are, of course, entirely in the eye of the beholder. The border between ‘offence’ and ‘humiliation’ or ‘intimidation’ is fuzzy, as is that between speech which does and doesn’t ‘detrimentally’ fall below intrinsically evolving and contested ‘scholarly standards’. Whether particular restrictions are ‘reasonable’ and ‘proportionate’ is likewise entirely fluid. In any particular application, what speech the code permits or prohibits will have to be determined by senior university managers. If they want to prevent or punish speech of certain kinds, they will find a plausible justification somewhere in the code that lets them do so, all the while professing their commitment to free expression. After the Arndt incident, Sydney University stressed that the protest was a legitimate exercise of free speech, but still took punitive disciplinary action against its organiser.

At first university leaders may have felt miffed that their institutions were singled out as particularly deserving of speech regulation, but they are exactly the group that French’s code will empower. A number of universities have already adopted the code. Sydney’s VC has welcomed it as ‘terrific’. Yet that university is certainly not proposing to reinstate Tim Anderson, whom it recently sacked for comparing Israel to Nazi Germany because of its practices towards Palestinians. Nor is La Trobe proffering any mea culpas for its dismissal of Roz Ward, or James Cook for Peter Ridd’s.

These dismissals were extremely serious violations of academic freedom, which nothing in the French code could have prevented. ‘Selective’ criticism of Israel and calls for its boycott, for instance, are regularly described by Zionists as antisemitic, a characterisation now supported by the highly contested definition of antisemitism promoted by the International Holocaust Remembrance Alliance, which Australia has just joined. This delivers university authorities a rationale for prohibiting them under the code.

In supplying vice-chancellors with a set of ambiguous principles they can always claim to be respecting, the code gives them a new means of justifying the same decisions they would always have taken. The way that university administrations in Queensland and Wollongong have ignored their own academics’ judgement and pushed ahead with the Ramsay Centre – while trumpeting their deep respect for academic freedom and autonomy – is a timely reminder that administrations will usually just do whatever they want.

In this light, the NTEU’s call for the code to be made enforceable by being embedded in university collective agreements is only a marginal improvement, and falls far short of offering the ‘only effective protections for academic freedom and intellectual freedom’, as the union claims. Fair Work Australia, which adjudicates violations of collective agreements, is anything but a reliable guarantor of university employees’ rights, whether in speech or anything else. Ultimately, only a fully democratic academic workplace, with university governance stripped away from unaccountable and out-of-touch senior managers and returned to staff and students, will create the conditions in which true freedom of expression can be fostered.

The current debate is motivated by conservatives’ belief that they do not have a voice on campus. This reflects a fundamental misunderstanding. No political viewpoint has an automatic right to be represented in teaching or research. Academic work should respond to its own priorities.

If governments really wanted universities to foster the uninhibited expression of a greater diversity of views, there’s a simple solution: make higher education free for students, and greatly increase the number of permanent academic staff universities can afford to employ. It speaks volumes that hardly a single member of the mainstream commentariat has raised this as an issue.

Removing obstacles to participation in further study would powerfully boost diversity in the student body. For academics, a secure, no-strings-attached job makes it much easier to venture beyond safe disciplinary orthodoxies, and frees research from the distortions of private funding. Those who think conformism is a problem in universities should not be wasting time on confabulated free speech crises, but should be calling for proper public funding for higher education. Obviously, that call is only coming from the left – exactly the target of the current free speech campaign.

Vice-chancellors have historically done little to make the case for greater government support of their institutions, instead soliciting industry partnerships and private philanthropy with increasing gusto. The French code gives them no reason to hold back. All it says, remember, is that universities have to take all reasonable steps to minimise restrictions that flow from partners or donors. That leaves university managements a lot of leeway: experience shows that their definition of ‘reasonable’ is often highly idiosyncratic. Ask Paul Frijters, whose research on racism in Brisbane bus drivers was suppressed by the University of Queensland. The Ramsay Centres and the various industrial or other bodies that want to influence research or teaching have little to fear.

The structural warping of academic independence by private money and non-academic interests is an infinitely greater threat to universities than left-wing students are. Governments have no interest in stemming this influence, just as they have little interest in ideological pluralism, dissent or independent truth-telling in society. Under the cover of a solution to the fake free speech crisis, Robert French’s code of practice has just created a major diversion from the real one.


The views expressed in this article are the author’s.

Nick Riemer

Nick Riemer works in the English and linguistics departments at the University of Sydney. He is currently president of the Sydney University branch of the National Tertiary Education Union.

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  1. Following up from this, if we did not have the French code enacted by University of Sydney (which was also subsequently fortified) the Australian launch for the Declaration of Women’s Sex Based Rights could not have occurred. Women who hold views that are critical of the prevailing gender ideological stance are routinely deplatformed and silenced by the academy (recently and notably Professor Selina Todd at Oxford University and Professor Rosa Freedman). As it was the launch was invaded and interrupted by protestors who only dispersed when the police were called, as gatherings for this purpose are routinely protested with women and attendees being harassed, intimidated and even assaulted, we were provided with security to leave the venue and get to our cars or the train station safely. This is an important policy for some groups.

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