New laws address academic freedom and freedom of speech in higher education

Academic freedom and freedom of speech are a part of laws regulating the higher education sector and academic activities.

In March 2021, the Australian Parliament amended the Higher Education Support Act 2003 (Cth) (the HESA) to specify that one of the specific purposes of the higher education sector is “the promotion and protection of freedom of speech and academic freedom”.

The HESA now includes this definition of academic freedom:

• the freedom of academic staff to teach, discuss, and research and to disseminate and publish the results of their research
• 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
• 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
• the freedom of academic staff to participate in professional or representative academic bodies
• the freedom of students to participate in student societies and associations
• 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.

The HESA allows the Federal Government to allocate public funds to support higher education providers and to set various operating standards which funding recipients are expected to meet.

The University recognises, supports and fosters an environment of intellectual freedom, including freedom of speech, as set out in the Academic Freedom Policy and Freedom of Speech Charter.

Changes to defamation laws coming soon

The purpose of defamation law is to provide effective and fair legal remedies to those who consider that their reputations have been harmed by the publication of defamatory information. From time to time, this may involve academic publications or public statements by or about individual academics.

In late 2020, the South Australian Parliament approved amendments to the Defamation Act 2005 (SA) to address the social and technological changes that have transformed the way information is published. From 1 July 2021, the amendments will:

• introduce a new serious harm threshold to the legal test of defamation (replacing the defence of triviality)
• require a potential litigant to serve a waiting period before commencing action during which time parties may negotiate
• set a limitation of actions period, beginning at the time the publication is first made publicly available and not extending to further publication of the same content (such as republication via social media)
• allow small corporations (fewer than 10 employees) to make a claim of defamation.

Improved public interest defences

Academics subject to defamation claims will be able to rely on improved public interest defences under the amended Act.

In hearing a claim of defamation, a court must consider a genuine public interest defence for the publication. The means that, in making a decision, the court must take into account whether the published information was fairly presented by an author who reasonably believed that its publication was in the public interest.

Scientific or academic information published in peer-reviewed scientific or academic journals will be specifically protected under the amended Act. For a defamation claim to be successful, it must be proved that the publication was not subject to rigorous and independent review and was not done with the intent of informing the public or advancing education and knowledge.

This article was updated on 24 May 2021 following proclamation of the Defamation (Miscellaneous) Amendment Act 2020.