There was a review by former chief justice Robert French, and then a further review by eminent legal academic Sally Walker to report on how well universities were implementing the French model code for freedom of speech.
Now, with pro-Palestine protests and encampments on many university campuses that are often met by counter pro-Israeli demonstrations, the French review’s model code is being tested.
There are grey and debatable areas (which I’ll get to) but, overall, it’s holding up well. Universities, in their handling of the protests, are in line with the principles enunciated by French in the model code. It’s worth quoting from it:
Every member of the staff and every student at the university enjoys freedom of speech exercised on university land or in connection with the university subject only to restraints or burdens imposed by:
• law;
• the reasonable and proportionate regulation of conduct necessary to the discharge of the university’s teaching and research activities;
• the right and freedom of others to express themselves and to hear and receive information and opinions;
• the reasonable and proportionate regulation of conduct to enable the university to fulfil its duty to foster the wellbeing of students and staff;
• the reasonable and proportionate regulation of conduct necessary to enable the university to give effect to its legal duties including its duties to visitors to the university.
Some conclusions can immediately be drawn. For example, the code does not give universities reason to remove peaceful protest encampments, provided they are not interfering with university activities or putting the wellbeing of students and staff in peril.
The code also has something to say about what constitutes wellbeing. Students and staff members should be protected from discrimination according to the law including on the basis of race, gender, sexuality, religion and political belief. They should also be protected from threatening or intimidating behaviour on account of things said by others exercising freedom of speech.
In defence of wellbeing, the code supports “reasonable and proportionate measures” being used to prevent even lawful speech “which a reasonable person would regard, in the circumstances, as likely to humiliate or intimidate other persons”.
But it also says “the duty to foster the wellbeing of staff and students does not extend to a duty to protect any person from feeling offended or shocked or insulted by the lawful speech of another”.
Balancing those last two calls for careful judgment. The incident last week, when a University of Queensland official negotiated with pro-Palestinian protesters to take down a flag associated with a terrorist group, was one such “reasonable and proportionate” measure that ended a situation likely to intimidate Jewish students. Well done, UQ.
But at the same time the code recognises universities do not have a duty to protect people from lawful speech that causes offence, shock or insult. Many people are not comfortable with this precept but they need to be.
What’s more, these principles are now being tested in the real world where, for example, the boundary between offensive speech and racial vilification is not always clear. The former may cause upset and anger but is protected. The latter is a crime, prosecutable under federal and state racial discrimination laws.
Some argue the pro-Palestinian chants of “intifada” and “From the river to the sea” heard on many university campuses are racist and anti-Semitic. Others say they are not and the law, currently interpreted, appears to be on their side.
This is not to say that unacceptable behaviour hasn’t occurred in protest encampments in Australian universities. But it’s not the norm and, so far, the measures taken by universities, in line with the model code on free speech, are broadly working. We have not seen the violence and police action that occurred on US campuses, and we can be thankful for that.
The very real debate over freedom of speech that has been sparked by the Gaza protests underlines that laws and guidelines alone are not sufficient to guarantee freedom of speech and to regulate unacceptable speech.
Ultimately, free speech relies on tolerance and understanding being deeply woven into the culture and norms of a society and a willingness to put oneself in the shoes of others. More specifically, how much have pro-Palestinian protesters thought about the dark and deeply embedded history of anti-Semitism over several millennia and its relationship to the October 7 attack by Hamas last year?
And how much has the pro-Israeli side endeavoured to see the Palestinian viewpoint; a people surrounded by walls and checkpoints, denied land they lived on for centuries and now having tens of thousands of compatriots who were not part of Hamas killed in the Gaza invasion?
Real freedom of speech comes when you are willing to test out the views of others and see if they fit.
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