Australian students are returning to university campuses for the start of the academic year. They do so amid highly charged debates around racism and antisemitism. Australian universities have been accused both of failing to protect freedom of speech and academic freedom, and failing to protect the safety and wellbeing of Jewish students and staff.
Australian students are returning to university campuses for the start of the academic year. They do so amid highly charged debates around racism and antisemitism.
Australian universities have been accused both of failing to protect freedom of speech and academic freedom, and failing to protect the safety and wellbeing of Jewish students and staff.
A new Australian Human Rights Commission study found more than 90% of religious Jewish students and staff had experienced racism at university. High rates were also reported for secular Jewish, Middle Eastern, Indigenous and Asian students.
The study noted how universities
face the challenge of creating respectful learning environments while allowing some discomfort in engaging with difficult ideas.
I research academic freedom and freedom of speech. As we begin semester one, how can universities balance the need to protect students, teachers and staff with the need to encourage robust and proper debates?
Academic freedom concerns speech or work related to teaching, study or research. Freedom of speech relates to activities on university land or in connection with the university, but not related to teaching, study or research.
Legislation requires Australian universities to safeguard freedom of speech and academic freedom and to have policies upholding these freedoms. All university enterprise agreements also contain provisions around academic freedom.
The main practical framework for universities is a voluntary model code for academic freedom and freedom of speech. This was developed by former High Court chief justice Robert French in 2019 at the federal government's request. It is set up to "ensure" freedom of lawful speech and academic freedom, subject to other "restrictions".
In 2026, universities will also need to demonstrate they have taken meaningful steps to regulate antisemitic speech. They will be assessed via a report card, with grades A through to D.
This was a recommendation from the Special Envoy to Combat Antisemitism's report last year. The report cards will focus on university policies, complaints processes and antisemitism awareness. Greg Craven, a former vice-chancellor of Australian Catholic University, is leading the assessment process.
Universities will be given a chance to respond and improve their performance if there are issues. The first round of reports is due in May, adding to the focus on how universities handle these issues.
Universities can take several steps if there is antisemitic speech in classes or on campus.
They can take disciplinary action (including sacking or expulsion) against unlawful speech. Unlawful speech includes incitement of violence or hatred toward "protected groups". These are groups distinguished by a certain characteristic, including race, religion or nationality. It is also illegal to display prohibited symbols or perform the Nazi salute.
Universities can also take action against speech that disrupts its teaching and research activities or prevents it from fostering the wellbeing of students and staff. This might include derogatory slurs in classrooms, protesters coming into classrooms or chanting outside libraries and lecture halls.
There are also protections against threatening, humiliating or intimidating behaviour. This is distinct from something that is merely offensive, shocking or insulting.
This distinction can be difficult to pin down and may require universities to take detailed legal advice. But the model code can be used to protect student and staff safety, while upholding freedom of speech and academic freedom
This year, universities need to demonstrate they have taken meaningful steps to regulate antisemitic speech, but without contravening freedom of speech or academic freedom.
It should mean students can debate and take opposing sides about Israel and the conflict in Gaza in an international law class, for example.
If they do this in a biology class, this would not be academic freedom. It may be freedom of speech, but could also be seen as disrupting teaching activities - and so subject to disciplinary action.
If students use derogatory slurs against each other at that time, universities may decide this not only disrupts teaching but is threatening, humiliating or intimidating and so may take disciplinary action.
Universities will need to ask similar questions if derogatory slurs, personal attacks or loud aggressive arguments or chanting occur in university corridors or elsewhere on campus.
Although the students or staff would still be exercising their rights to freedom of speech on campus, the manner of this speech can be regulated. Is aggressive chanting disrupting teaching or research? Is it threatening, humiliating or intimidating students on campus?
Under the model code, universities can ban visiting speakers if a speech is likely to be "unlawful", "prejudice the fulfilment by the university of its duty to foster the wellbeing of staff and students" or,
fall below scholarly standards to such an extent as to be detrimental to the university's character as an institution of higher learning.
When it comes to protests, different universities have different laws and policies. If universities allow protests, they will need to ensure they do not disrupt teaching and research or undermine wellbeing.
All this shows universities face a delicate balancing job ahead. They need to make sure they remain places of robust debate. And students and staff feel safe to study, work and participate in these debates.
TheConversation.com
Author: Pnina Levine - Senior Lecturer, Curtin Law School, Curtin University
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