When Education Minister Dan Tehan announced he would hold an inquiry into freedom on speech – or rather the lack of it – on Australian campuses back in October, it was always pretty clear where he was coming from and what he wanted from it.

It’s not surprising then that the report still hasn’t been released. But thanks to a report in the Australian Financial Review last week we know that the reviewer – Justice Robert French – was unable to find any evidence of a crisis in freedom of speech. Because, basically, you can’t find what’s not there.

The right to academic freedom and freedom of speech are sacred to universities, but the nature of this responsibility is often complex and open to misinterpretation, over-interpretation and, at times, downright, misinformation.

What is freedom of speech?

The Australian Attorney General’s website defines freedom of speech or freedom of expression as this:

“The right to freedom of opinion is the right to hold opinions without interference, and cannot be subject to any exception or restriction.

“[However], the right is not absolute. It carries with it special responsibilities, and may be restricted on several grounds. For example, restrictions could relate to filtering access to certain internet sites, the urging of violence or the classification of artistic material.”

As we can see it’s not so straightforward. Freedom of speech cannot be subject to any exception or restriction, except that it can. No wonder this has become such contested space.

Do we need an inquiry?

At the time of announcing the appointment of French to run a review Tehan said: “We must ensure our universities are places that protect all free speech, even where what is being said may be unpopular or challenging. The best university education is one where students are taught to think for themselves, and protecting freedom of speech is how to guarantee that.”

Tehan was echoing sentiments that have been part of the right wing mantra for a number of years now – the idea that universities are “ crawling alive with left-wing people,” as shock jock Alan Jones has said.

Jones also claims, in the most patronising of tones, that campus protests are “little left-wing taxpayer funded so-called students.”

In one of Tehan’s first media appearances after his appointment as education minister last August, Jones told him:

“I think [higher education] is the worst portfolio in government. This is the toughest job and, to be honest with you, I’m not sure anything can be done. I think the horse has bolted.”

The horse in question was freedom of speech. Jones’ position is no secret. He has made a career out of pushing the boundaries of freedom of speech and faced a number of defamation suits as a result – a number of which he has lost.

Just a couple of weeks after this exchange, Prime Minister Scott Morrison told Sky News: “It’s free speech for some and not for others. What I’ve always noticed from the left is they’re happy to have free speech as long as you agree with them. If you have a different view you’re a bigot.”

That echoes a 2014 line from then Attorney General George Brandis when he said that “people have rights to be bigots.” That line has risen in to prominence again in the aftermath of the Christchurch mosque massacres.

In October, the NSW Education Minister Rob Stokes blasted universities for “encouraging a far-left group think mentality.” He claimed that “great speakers from around the world are being banned from giving university talks because academics have labelled their views as unacceptable.” He didn’t offer any evidence or proof of this rather dramatic claim.

Instances in Australia

2018 might prove to be something of a high-water mark due to a small number of high-profile instances.

Bettina Arndt: A speech by Bettina Arndt at Sydney University, at the invitation of the student Liberal Club was disrupted by the university’s left-wing women’s collective. Arndt had been asked to speak on her views that a so-called “rape culture” on Australian campuses did not exist and she accused universities of “pandering to feminist ideologues propagating scare stories” about sexual assault. Despite a loud and pushy protest, and the arrival of police, the talk went ahead after protesters were dispersed. The Liberal Club was sent the $475  bill for additional security, as is the university’s policy for clubs holding events that require security. At La Trobe University, Arndt was initially banned from but her talk eventually proceeded.

Ramsay Centre for Western Civilisation: ANU was the focus of literally dozens of articles and opinion pieces last year when news emerged that it had withdrawn from negotiations with the Ramsay Centre for Western Civilisation. The overriding argument was that the university was merely pandering to the views of left-wing, staff and students and that universities were no longer allowed to celebrate masterpieces from the Western cannon. ACU vice-chancellor and professional provocateur Greg Craven described ANU’s decision as “the greatest act of gutlessness since Trevor Chappell bowled under-arm to New Zealand.” ANU argued it was about undue influence from the Ramsay Centre about staffing and curriculum. Since then the Ramsay Centre has signed up Wollongong University – although that is not without controversy with the academic board condemning vice-chancellor Paul Wellings for pushing through the deal without consultation. The University of Queensland and Sydney University are both still in discussions, as I assume some others are.

Quentin Van Meter: In August last year, the University of Western Australia accepted a venue booking from the Australian Family Association for US paediatrician Quentin van Meter to speak. Van Meter argues transgender people are delusional. VC Dawn Freshwater and Chancellor Robert French (the same Robert French who has been tasked with producing the government’s freedom of speech report) released a statement saying, despite opposition, the university would allow van Meter to speak. A couple of days later, the university reneged, this time with a statement from just the VC saying it was cancelled because the organisers had not submitted a “risk assessment and detailed event management plan.”

In the name of Confucius: A film that was critical of the Chinese Communist Party was cancelled at Victoria University shortly after Chinese diplomats sought “feedback” on the public event. The film In the Name of Confucius is linked to the Chinese group Falun Gong and claims a global network of Chinese-backed Confucius Institutes are used to spread Chinese Communist Party ­influence in Western universities. VU hosts a Confucius Institute.

Peter Ridd: JCU geophysicist Peter Ridd was sacked last year. The university said it was because he had “Continually broken a code of conduct that we would expect all our staff to stick to, to create a safe, respectful and professional workplace.” News Corp outlets which followed the case said it was because of his fringe views on climate change and for his rejection of the scientific evidence linking human activity to degradation of the Great Barrier Reef. The case has again returned to some level of prominence with Ridd back in court challenging his dismissal.

Tim Anderson: Sydney University academic Tim Anderson was sacked in February this year after being stood down in December for serious misconduct which involved circulating lecture materials which contained an “altered image of the Israeli flag” featuring a “cropped swastika.” Anderson had previously been in the news for his pro-Syrian stance. He claimed Syrian dictator Bashar al-Assad has been framed by the West for the 2017 chemical weapons attack, calling it a “hoax” and describing Syria’s civil war a “fiction” perpetrated by the US “to destroy an independent nation.”

That’s it for 2018 as far as I can see. Not all of these are freedom of speech cases, most are in fact about academic freedom – and the two often get conflated although they are entirely different.

Do these cases have anything in common?

In a superb piece in UK’s Guardian last year, journalist Andrew Anthony wrote that, in relation to freedom of speech, there are basically five incendiary topics:

Genetics; religion; race, transgenderism, and Western Civilisation.

French was asked to look at “the rules and regulations protecting freedom of speech on university campuses, including: codes of conduct, enterprise agreements, policy statements and strategic plans.

Writing in The Australian, Matthew Lesh, a research officer with the right wing think tank the Institute of Public Affairs said that the inquiry was necessary because university policies prevent “insulting” and “unwelcome” comments, “offensive” language and, in some cases, sarcasm.”

He said: “Australia’s universities are lacking viewpoint diversity — ­ differen­t perspectives challenging each other in the pursuit of truth. This leads to a culture of censorship in which individuals who speak out are treated as heretics, and proposals such as those of the Ramsay Centre for Western Civil­isation are vehemently opposed.”

He went on to quote someone called Andrew Marzoni who had written in the The Washington Post that “academia is a cult … rooted in submission to a dogma manifested by an authority ­figure” in the form of tenured professor­s.

Lesh also quoted University of Adelaide lecturer Florian Ploeckl who has said that “funding is easier and more plentiful if you pick the right topic, publishing is easier if you don’t rock the boat, and life in the department is easier if you see the world in the same way your colleagues do.”

I would suggest there is an element of truth to this, however uncomfortable it is to admit. In The Guardian last year, Harvard University moral philosopher Jeff McMahan, said:

“There is a greater inhibition on university campuses about certain view for fear of what will happen. Threats from outside university tend to be more from the right. The threats that come from within the university tend to be more from the left.”

The article went on to say: There is a “new generation of left-wing academics (and students) who come from the postmodern left, which is steeped in identity politics. To put it crudely they tend to focus more on culture than economics. And it seems to be questions of identity – gender, race, religion – that often inspire the most intemperate reactions.”

He also made a really interesting point that by focusing on culture wars and identity issues, the left has allowed the right to pursue an agenda of commercial and environmental exploitation that is hastening climate change towards global catastrophe.

He told The Guardian: “So to the extent that students are distracted from thinking about climate change by worrying about what pronouns people are using, they’re helping out the really powerful people on the right, such as the Koch Brothers by failing to take them head-on.”

Of course, it’s entirely possible to worry about pronouns and climate change, but identity politics appear to be exciting the most aggressive protests – both here and overseas.

Principles for upholding freedom of speech

Following the Ramsay Centre debacle last year, ANU did what all good universities should do and convened a seminar on the subject inviting representatives from both sides of the debate.

One speaker Adrienne Stone, director of the Centre for Comparative Studies at the University of Melbourne, Stone said all serious thinkers and all legal systems, including the US recognise there are limits to freedom of speech. She said freedom of speech in universities is a means to an end, not an end in itself.

“There is no context in which freedom of speech constitutes an absolute right to say anything at all.”

During her presentation Stone outlined four fundamental principles for upholding freedom of speech:

1.     Unorthodox ideas should be welcomed and offensive ideas tolerated. “It’s very important that orthodoxies can be challenged and ideas subject to debate and criticism”. She went on: “A university community is one in which people will disagree and often in deep and unchangeable ways. These disagreements can be highly offensive and upsetting, but offensive ideas must be tolerated – since this goes to the heart of freedom of speech.

2.     Protest is crucial, should be permitted and facilitated. Stone said that protection of the right to protest is an important as the protection of the right to speak. However, the cost of security should not fall to those provoking the protest, as in the Bettina Arndt case, because that would give protestors an “effective heckler’s veto.” She argued that if governments are serious about protecting freedom of speech on campuses they should fund them in a way that makes it possible to balance free speech and protest. A free speech fund for each university is a small price to pay for something so fundamental, she said.

3.     Universities must protect the pursuit of knowledge. But, they do not have a responsibility toward those who “blatantly disregard evidence, research and scholarly standards of inquiry.” Justice French has publicly endorsed this view saying said is no legal requirement for universities to provide a forum for all speakers but there should be a high threshold for denying them.

4.     A university’s intellectual climate must take seriously the concerns of students and staff. But concerns about hurt feelings of some is not a high enough threshold to prevent speakers from speaking. It’s also worth noting that vilification and defamation laws apply equally to university campuses as they do in other parts of the community.

So, while the capacity to participate in an exchange of ideas is at the core of why universities exist, it is also the case that speech is never without limits.

The struggle is with finding where those limits lie. Some common suggestions are when there is no opportunity for a reasoned reply, when speech implicitly or explicitly endorses or incites violence or when it traffics in well-established falsehoods.

According to the AFR, French’s report will say that it is a “universities’ role to refuse admission to a visitor to speak on campus if they do not meet ‘scholarly standards’ or their comments could be ‘detrimental to the university’s character.’”

It’s been pointed out that many groups use university campuses because of the status that a university invokes and because they are hopeful of provoking a reaction. The Australian Family Association would have had hundreds of public venues to choose from when it arranged to book Quentin van Meter as a speaker, but it chose UWA.

The groups that are promoting these ideas and speakers are in search of controversy because it forces a spotlight on them and their issue. They want the protests, the want the police and riot squads and they want the media attention; they especially want them on university campuses because it goes to prove their point that campuses are “crawling alive with left-wing people.”

Leading the charge

Leading the charge that there is a crisis in freedom of speech on Australian campuses Institute of Public Affairs. For the past three years it has conducted what it describes as an “audit” of policies and actions impacting on free speech on Australian campuses.

The audit “analyses” over 190 policies and actions at Australia’s 42 universities. It then assigns a “Hostility Score” – red, amber or green – according to the number of policies and actions it considers limit free speech. The IPA calculates there has a staggering increase of 82% in hostile policies and actions between 2016-18. That’s a big number, right!

The IPA’s view is that “universities are becoming closed intellectual shops. Those who express a contrarian view are often treated like heretics.”

It is not immediately apparent in reading the audits as to the objectivity of the IPA’s methodology. One also wonders whether the University of New England’s solo green rating is more out a matter of laxness that openness.

Writing in The Australian early this year, Lesh wrote: “The price of living in a free society is that sometimes people will say things with which we vehemently disagree and hurt our feelings. Being offended is not a physical impairment, it is merely a feeling. Words are not the same as action. Being offended is not the same as being physically assaulted, nor is it the same as being personally harassed. Words are not violence.”

I suspect that in the aftermath of Christchurch and the fury over Fraser Anning’s irresponsible comments, Lesh might be having second thoughts about this statement. Because, clearly, words can be violence.

Enter Glyn Davis

Giving the keynote address ahead of the ANU seminar, former University of Melbourne vice-chancellor Glyn Davis described the furore over freedom of speech as “special pleading” and a “confected” crisis.

Special pleading, he explained, is “offering an argument even though evidence is lacking or even contrary.”

“We special plead because we want something to be true even when we cannot prove the case. We rely on only those facts which suit our argument, claims of widespread support for our point of view, and the use of memorable examples, even when these diverge from verified broader trends.”

Davis said it was a sobering exercise to look at the evidence in support of a free speech crisis, because if one did so through an objective lens, one would find “a small number of anecdotes repeatedly retold, warnings about trends in the US, implausible readings of university policies and unsourced claims that students and staff feel oppressed.”

“We are offered scraps of unrelated incidents. Tenuous and sometimes tendentious claims. Occasional concerning incidents. Some poorly framed policies. As though these sum to a high water mark,” he said.

Davis said the underlying point of the IPA’s work is to establish a claim that conservative students are silenced and their wellbeing threatened by left wing students and staff who control the culture of universities.

Davis made the point that by importing US-style analysis and campaign techniques into Australia would be fine if there was an overlap between what happens in US campuses and what happens here. But, quite simply, there isn’t an overlap.

The crisis is confected

While we can agree that we don’t have a freedom of speech crisis on our university campuses, there is evidence of confusion among university leaders as to when and if a speaker can be shut down.

Despite the protests at Sydney and La Trobe Universities, Bettina Arndt got to say her piece. Just as it should be.

However, UWA stopped Quentin van Meter from speaking using incomplete paperwork as an excuse. That’s not good enough.

I came across a lovely expression the other day – the exhausted majority – to describe the 60% or more of Americans who do not conform to partisan ideology at either end of the spectrum.

Instead, “they share a sense of fatigue with our polarised national conversation, a willingness to be flexible in their political viewpoints and a lack of voice in the national conversation.”

Hopefully, the French review, when and if it is finally published, will help about a greater clarity about the conditions under which speech can legitimately be curtailed.

But we need to keep things in perspective. For all the brouhaha over a small number of highly politicised issues, there are hundreds of thousands of speakers, forums and events that go ahead without controversy every year.

This is an edited version of a speech I gave to the Australasian Universities Risk and Insurance Management Society in Melbourne on April 4.

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