Sydney Uni’s ‘enforced civility’ is an assault on free speech – and likely unlawful

The right to protest, free speech and academic freedom are central tenets of a functioning democracy. Universities, as distributors of knowledge, have a particular responsibility to foster an environment where controversial ideas can be discussed and debated.

However, if the University of Sydney accepts the sweeping recommendations made by Bruce Hodgkinson SC in a report handed down last week, it could become one of the most restrictive campuses in the country for peaceful protest, intellectual freedom and critical debate. Not only would this set a dangerous precedent, silencing students’ voices, but it could target racialised young people and clash with free speech and academic freedom laws and policies.

The pro-Palestine encampment at the University of Sydney. Credit: Steven Siewert

Hodgkinson’s report was commissioned in response to an anti-war student encampment at the University of Sydney calling for it to cut ties with weapons manufacturers and organisations complicit in what a United Nations commission has described as Israeli war crimes and crimes against humanity.

The report acknowledges rising Islamophobia, the issue of falsely labelling support for Palestinians as antisemitic, and the diversity of Jewish staff and students, some of whom participated in or supported the encampments. However, its recommendations largely respond to concerns that the encampments made some feel distressed, as well as reports of antisemitism. It recommends banning protests in buildings, prohibiting encampments, restricting the placement of posters, banning student announcements before lectures and introducing a vaguely defined “civility rule”.

No person should face racial discrimination, abuse or threats on campus or anywhere. University policies and discrimination laws exist to address this. Yet, Hodgkinson’s recommendations go far beyond preventing racism and would restrict all peaceful protest at the university.

Universities have long been at the centre of struggles for social justice, among them the movement against South African apartheid, the Vietnam War protests and the 1960s Freedom Rides. Student protests have helped shape Australia’s political debate and cultural landscape for the better – but at the time, they were perceived as anything but “civil”. Student activists often faced heavy-handed policing, arrests and disciplinary responses.

Many of these protests relied on tactics proposed to be banned, such as office sit-ins, occupying buildings, the dropping of banners and camping out on university lawns. In 1983, our own Prime Minister, Anthony Albanese, then a student, led a small group that scaled the university’s clock tower and occupied a staff room in protest against the axing of the political economy course.

The most concerning of Hodgkinson’s recommendations is the “civility rule”, which would require a person using a contested “word or phrase” – in a lecture, seminar, tutorial or meeting – to identify the context in which it is used. Breaching this would amount to misconduct and withdrawal of funding from organisations in which students do not “disagree well”. When questioned during a Senate inquiry last week, the university’s vice chancellor, Mark Scott, could not explain how this rule would work in effect.

Some academics have labelled the rule “utterly bizarre and unworkable” and most likely to be “wielded selectively against those who speak up for Palestine”. As a university lecturer myself – one who encourages timid or apprehensive students to test new ideas – it is hard to see how a rule like this would not simply intimidate them into silence.

The notion of “civility” has been used to justify violence and discrimination against First Nations peoples, and it has led to racialised people being perceived as “uncivilised”. Students with these identities are more likely to be affected by any so-called “civility rule”.

Under the rule, students or staff who hold contested political views and make political demands associated with their views, such as calling for freedom and equality for Palestinians between the Jordan River and the Mediterranean Sea, would be punished if they did not explain the context of this demand. Just because Israel strategically frames all Palestinian demands as antisemitic, it doesn’t mean Palestinians and their supporters should have to continually prove that their calls for basic human rights are not racist.

The NSW Council for Civil Liberties has warned that this punishment may run counter to the university’s own act in the NSW parliament, which prohibits it from punishing students for their political views. The university is legally required to protect free speech and academic freedom.

Both a review of freedom of speech at Australian universities by former chief justice Robert French and the University of Sydney’s own policy are clear that this doesn’t include shielding anyone from feeling offended or shocked by lawful speech. Similarly, the High Court, in a case involving academic Peter Ridd, ruled that academic freedom must allow speech that challenges “civil norms” and cannot be limited by a supposed “right” to respect or courtesy. The failure of the Hodgkinson report to reckon with these concerns should be enough to convince the university to cast it aside.

Universities have a difficult task given the contested nature of debates about Palestine. But as educational institutions, they cannot simply bury their proverbial heads in the sand with dangerous notions of “enforced civility”. Silencing those speaking out against international atrocities will only inflame tensions.

Instead, universities must step forward to provide genuine spaces for education, debate and protest, with any limitations grounded in human rights law. Failing this will not only degrade our academic institutions; it risks alienating and silencing a generation of students who may just be our future leaders, advocates and human rights defenders.

Sarah Schwartz is a legal director at the Human Rights Law Centre.