Higher Education Support Amendment (Freedom of Speech) Act 2021
No. 22, 2021
An Act to amend the Higher Education Support Act 2003, and for related purposes
Contents
1 Short title
2 Commencement
3 Schedules
Schedule 1—Amendments
Higher Education Support Act 2003
Higher Education Support Amendment (Freedom of Speech) Act 2021
No. 22, 2021
An Act to amend the Higher Education Support Act 2003, and for related purposes
[Assented to 22 March 2021]
The Parliament of Australia enacts:
1 Short title
This Act is the Higher Education Support Amendment (Freedom of Speech) Act 2021.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information |
Column 1 | Column 2 | Column 3 |
Provisions | Commencement | Date/Details |
1. The whole of this Act | The day after this Act receives the Royal Assent. | 23 March 2021 |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedules
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendments
Higher Education Support Act 2003
1 Subparagraph 2‑1(a)(iv)
Omit “free intellectual inquiry in learning, teaching and research”, substitute “freedom of speech and academic freedom”.
2 Section 19‑115 (heading)
Omit “free intellectual inquiry”, substitute “freedom of speech and academic freedom”.
3 Section 19‑115
Omit “free intellectual inquiry in relation to learning, teaching and research”, substitute “freedom of speech and academic freedom”.
4 Subclause 1(1) of Schedule 1
Insert:
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.
[Minister’s second reading speech made in—
House of Representatives on 28 October 2020
Senate on 24 February 2021]
Overview
The Higher Education Support Amendment (Freedom of Speech) Act 2021 was enacted by the Parliament of Australia to address concerns over the protection and promotion of freedom of speech and academic freedom within higher education institutions. The Act aims to amend the Higher Education Support Act 2003 by refining the definitions and protections associated with these principles in educational settings. The policy objective of this legislation is to ensure that academic staff and students can engage in intellectual inquiry, express their opinions, and contribute to public debate without undue restriction, while also safeguarding the autonomy of higher education providers in their academic offerings and research activities.
The Act came into effect the day after receiving Royal Assent on 23 March 2021, and it incorporates amendments to the Higher Education Support Act 2003, primarily by replacing references to "free intellectual inquiry" with "freedom of speech and academic freedom". This change is intended to provide a clearer and more comprehensive framework for protecting these rights within the higher education sector. The Act also defines "academic freedom" to encompass various freedoms related to teaching, research, and public expression, as well as the autonomy of higher education providers in their academic and research decisions.
Scope and Application
The Higher Education Support Amendment (Freedom of Speech) Act 2021 amends the Higher Education Support Act 2003 to introduce new provisions aimed at enhancing the protection of freedom of speech and academic freedom within Australian higher education institutions. This Act applies to all higher education providers, academic staff, and students within its jurisdiction, encompassing universities, vocational education and training institutions, and other recognised higher education entities. Its geographic reach is national, as it applies across the Commonwealth of Australia. The Act seeks to modify the foundational principles guiding the support of higher education to explicitly include freedom of speech and academic freedom, thereby redefining the scope of these concepts to ensure they encompass a broader range of academic activities and expressions. The Act came into effect on 23 March 2021, the day after receiving Royal Assent. Its provisions are detailed in Schedule 1, which outlines specific amendments to the Higher Education Support Act 2003, including the redefinition of key terms and the updating of legislative headings and subparagraphs to reflect the new focus on freedom of speech and academic freedom.
Key Provisions
The Higher Education Support Amendment (Freedom of Speech) Act 2021 primarily amends the Higher Education Support Act 2003 to incorporate a broader understanding of academic freedom and freedom of speech within the higher education sector. Section 1 of the Act specifies that the Act will come into force the day after it receives Royal Assent, which occurred on 23 March 2021. The substantive changes to the Higher Education Support Act 2003 are detailed in Schedule 1 of the amending Act, which replaces references to "free intellectual inquiry" with "freedom of speech and academic freedom" in several sections, including subparagraphs 2-1(a)(iv) and section 19-115. Additionally, the definition of "academic freedom" is expanded to include various freedoms related to teaching, research, expression, and participation in academic and student bodies, as outlined in subclause 1(1) of Schedule 1.
Under the amended legislation, higher education providers, academic staff, and students are subject to specific obligations. Higher education providers are required to ensure that their policies and practices support freedom of speech and academic freedom. Academic staff must exercise their freedoms responsibly and within the boundaries set by their institutions, while students are granted the freedom to express their opinions and participate in academic and student activities. These obligations are intended to create an environment where intellectual inquiry and open debate can flourish.
Failure to comply with the provisions of the Act could result in various consequences. While the Act does not explicitly detail specific offences or penalties, breaches of the amended provisions could potentially lead to disciplinary actions by the higher education provider, such as warnings, fines, or even termination of employment for academic staff, or expulsion for students. Furthermore, if the breaches are severe or systematic, they might also attract scrutiny or intervention from regulatory bodies or the government, which could result in additional sanctions or corrective measures. The precise legal ramifications would depend on the specific policies and disciplinary frameworks of the higher education institutions involved.