I am writing to you on behalf of the Group of Eight (Go8) following receipt by the Go8 Chair, Professor Dawn Freshwater of proposals by the Higher Education Standards Panel (HESP) to amend the Higher Education Standards Framework (Threshold Standards) 2015 (Threshold Standards). This follows my letter on this same subject of 2 July 2019 to the Minister for Education, the Hon Dan Tehan MP, that I copied to you.
I take this opportunity to re-iterate the appreciation of the Go8 that the HESP has taken the effort to engage directly in seeking feedback on proposed changes to the Threshold Standards. The proposed amendments to the Threshold Standards are, of course, the first of three main recommendations made by former Chief Justice Robert French AC in his Independent Review of Freedom of Speech in Australian Higher Education Providers (the French Review).
Viewed in complete isolation, the proposed amendments to the Threshold Standards do not appear to involve concern of themselves. It is abundantly clear, however, that these proposals cannot be examined in isolation of proposals to insert a definition of ‘academic freedom’ in the Higher Education Support Act 2003 (HES Act) and consequentially in the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act).
Further, it must be recognised that removing the concept of free intellectual inquiry from the Threshold Standards and replacing it with the dual, overlapping yet distinct concepts of freedom of speech and academic freedom may have serious consequences. Indeed, while the inclusion of the definition of academic freedom in the HES Act may appear to offer some clarity, the definition proposed in the French Review includes elements that are more about free speech than academic freedom.
Importantly, each of the elements of academic freedom is subject to reasonable and lawful limits as may be imposed by a higher education provider.
In that context also, including in a regulatory instrument such as the Threshold Standards the inherently subjective concept of freedom of speech – a core value of universities which has been demonstrated so clearly recently – is likely to create even less clarity for institutions, students and the community.
This highlights the very significant practical challenges in the implementation of the proposed amendments recommended in the French Review.
It is not clear to the Go8 what exactly is being considered with respect to a definition of academic freedom at this stage.
Clarity is critical. It materially effects the proposal to amend the Threshold Standards. I understand, however, that the definition proposed in the French Review is being pursued for insertion in the HES Act. In that light, it is important to note the robust discussions at the University Chancellors Committee (UCC) on the recommendations of the French Review, including with respect to the Model Code and the proposed definition of academic freedom.
Following these discussions, Chancellors Gareth Evans AC (Australian National University), Peter Varghese AO (University of Queensland) and Robert French AC (University of Western Australia) agreed to re-examine the Model Code and the definition of academic freedom on behalf of the UCC.
As a result, a revised Model Code and different definition of academic freedom from that in the French Review have been proposed to University Chancellors.
Given the clear interdependence of the first two recommendations of the French Review with one another – amendments to the Threshold Standards and a legislated definition of academic freedom – it is imperative these be considered together, not separately. Certainly, the Go8 cannot usefully consider one with no visibility of the other, through an exposure draft process, for example.
There is significant work underway across the Go8 and has been for some time to examine how changes proposed to the regulatory landscape might materially affect institutions.
There can be significant implications in this area. For example, in one Australian state, the law was amended in 2017 to remove the capacity for universities to make delegated instruments such as statutes and rules. This has the effect that institutions are able to operate under internal policies and procedures and that these would be over-ridden by a legislated definition of academic freedom and Model Code for example. This situation would have serious implications for institutional autonomy.
I stress again the importance of examining these proposals and instruments concurrently and look forward to being able to do so at the earliest opportunity.