Member Update - Academic Freedom: Problems with the NTEU Draft and a Proposed Alternative

11 October 2022

Problems with the Proposed NTEU Draft

The NTEU is currently circulating a proposed clause on Intellectual and Academic Freedom to a number of AHEIA members. The clause is problematic in several respects and AHEIA recommends that members do not accept this proposal.

In summary, AHEIA has the following concerns about the proposed clause (see Appendix A for a copy of the clause):

• Vague drafting could easily result in a dispute.  Specifically, the provision refers to “encouragement” to staff to participate in governance of the university and references governing bodies operating in a “transparent and accountable manner”. This is vaguely worded and open to interpretation.  It is likely that the lack of clarity in respect of these key issues will result in an opportunity for the NTEU to propagate a dispute and open questions around governance that would not usually be part of the Enterprise Agreement.
• Unreasonable infringement of managerial prerogative. This provision attempts to include great rights of consultation under the guise of Academic Freedom. The requirement for staff to be “consulted” in decision-making processes and structures should be strictly limited to major changes so as not to unnecessarily fetter the university’s managerial prerogative.
• Unnecessary inclusion of “right to participate”.  Under the Fair Work Act 2009 and Anti-Discrimination legislation, staff have significant legal protections safeguarding their rights concerning union activity and political opinion.  Accordingly, the attempted addition of “without fear of harassment, intimidation or unfair treatment” is superfluous, vague, open to interpretation, and capable of being the subject of disputes.
• Ridd v James Cook University [2021] HCA 32.   In this case the High Court held that an academic subject to disciplinary action was not unlawfully terminated, as he had acted in breach of a policy.  The final two paragraphs of the proposed NTEU clause, particularly the exclusion of the operation of key policies, appears specifically designed to limit a university’s ability to terminate staff for breaching policies. While this may be in line with traditional understanding of Academic Freedom, members should be aware of the implication of this inclusion.

Alternative Drafting of Academic Freedom Clause

A number of universities are resisting the inclusion of provisions with respect to Academic Freedom in the Enterprise Agreement to limit the possibility that they will become the subject of disputes.

For those universities who intend to include a provision on Academic Freedom, AHEIA recommends that the drafting follow as closely as possible the drafting in the French Model Code (which has been incorporated into policy in Australian universities in different ways), particularly the elements that have been included in Schedule 1 of the Higher Education Support Act 2003 and incorporated by reference into the Higher Education Threshold Standards. Distinctions between the Standards and the content of the Enterprise Agreement could give rise to complexity in implementation and universities understanding their obligations. Appendix B outlines a proposed set of clauses on Academic Freedom which are taken directly from the French Model Code and should therefore align well with both existing university policies and obligations under the Threshold Standards.

While there is an obligation on universities to provide an environment that respects freedom of speech, it is recommended that this broader right not be included in the Enterprise Agreement itself especially as these provisions may intersect with other protections of freedom of speech in general employment law and under various State laws.

NTEU Proposed Clause

XX. Intellectual and Academic Freedom

XX.1 The University is committed to act in a manner consistent with the protection and promotion of Intellectual and Academic Freedom within the University. In relation to governance, the University will encourage employees to participate actively in the operation of the institution and in the community. The University will ensure that all governing bodies operate in a transparent and accountable manner, encouraging freedom of expression and thought

XX.2 Intellectual and Academic freedom includes:

XX.2.1 The rights of all employees to be consulted in decision-making processes and structures within their institution, including the right to express opinions about the operations of that institution and higher education policy more generally;

XX.2.2 The rights of employees to pursue critical and open inquiry and to participate in public debates and express opinions about issues and related ideas;

XX.2.4 The right of all employees to participate in professional and representative bodies, including industrial associations and to engage in community service without fear of harassment, intimidation or unfair treatment;

XX.2.5 The right to express unpopular or controversial views, although this does not mean the right to harass, vilify or intimidate. In the exercise of Intellectual and Academic Freedom, employees will act in a professional and ethical manner and will not harass, vilify, intimidate or defame the institution or its employees.

XX.3 An exercise of academic freedom is not misconduct or serious misconduct under the provisions of this Agreement or under any university policy, procedure or code of conduct. For the avoidance of doubt, the University’s Code of Conduct or Workplace Behaviour Policy, Social Media policy, Social and Equality policy, howsoever described, does not apply when a staff member exercises academic freedom.

XX.4 The University must not take any action against a staff member which prejudices a staff member in their position in relation to the staff member’s exercise (or proposal to exercise) Intellectual and Academic freedom.

Proposed AHEIA Academic Freedom Draft

All wording in this draft is taken directly from the Schedule of the HESA (definition of Academic Freedom) or the French Model Code.

1. “Academic freedom” means the following:

(a)  the freedom of academic staff to teach, discuss, and research and to disseminate and publish the results of their research;
(b)  the freedom of academic staff and students to engage in intellectual inquiry, to express their opinions and beliefs, and to contribute to public debate, in relation to their subjects of study and research;
(c)  the freedom of academic staff and students to express their opinions in relation to the higher education provider in which they work or are enrolled;
(d)  the freedom of academic staff to participate in professional or representative academic bodies;
(e)  the freedom of students to participate in student societies and associations;
(f)  the autonomy of the higher education provider in relation to the choice of academic courses and offerings, the ways in which they are taught and the choices of research activities and the ways in which they are conducted.
2. Every member of the academic staff and every student enjoys academic freedom subject only to prohibitions, restrictions or conditions:

• imposed by law;
• imposed by the reasonable and proportionate regulation necessary to the discharge of the university’s teaching and research activities;
• imposed by the reasonable and proportionate regulation necessary to discharge the university’s duty to foster the wellbeing of students and staff;
• imposed by the reasonable and proportionate regulation to enable the university to give effect to its legal duties;
• imposed by the university by way of its reasonable requirements as to the courses to be delivered and the content and means of their delivery.

Consideration may also be given to the following element of the French Model Code, subject to the comments re the Ridd Case noted above: ‘The exercise by a member of the academic staff or of a student of academic freedom, subject to the above limitations, shall not constitute misconduct nor attract any penalty or other adverse action.’

Please feel free to contact Catherine Pugsley if you have further queries.

Member Update – Academic Freedom: Problems with the NTEU Draft and a Proposed Alternative