After much scornful denial that the draft Code of Conduct could involve threats to freedom of speech, the Vice-Chancellor urged members who have concerns" "to set them out clearly for the consideration of Council." Here as sometimes, his least urging was my command. However, as explained in Bullet #1, he had already complained to the IRC about the expression of just such concerns, and Commissioner Smith enjoined the NTEU not to communicate with Council on the matter. As I was on the NTEU executive, my reply has been considerably delayed. Having resigned from it for the purpose, I present it here, with a short comment on later developments.
The gist: contrary to the VC's bluster, the draft did indeed contain several serious and direct threats to freedom of speech. One was later removed, but major ones remain.
For nearly all the 20th century, the freedom of speech of academics has been protected by the institution of tenure; indeed, this was its main rationale. They could not be sacked for speaking out.
But tenure has been abolished. Academics are now in the same boat as any other employees, and their protection from such sacking rests on the laws governing industrial relations.
If Management don't like something an academic is saying, and so s/he is charged with breach of a code of conduct, Management can in effect be plaintiff, jury and sentencer. If senior management did particularly want to get rid of a critic, they could. The main legal protection against unfair dismissal - and so the main legal protection of free speech - comes later: it lies in there being clear grounds of appeal. To say this is not to accuse anyone of being nasty; it is to point out the legal facts of life.
There is no provision for casual or probationary or contract or special arrangement employees to appeal, except in very special circumstances.(The NTEU did succeed in getting an appeal heard, and managed to win a redundancy payout for, a sacked contract employee at one University who had been on contract for 16 years.)In this context the policy of indefinitely increasing the proportion among academics of casual and contract workers is in itself a threat to the ethos of free speech. I am not saying that this is its purpose, but pointing out that it is a worrying side-effect.
In NSW one important category of free speech is defended in ways that override Universities' codes: there are laws protecting whistleblowers. In Victoria there are not.
But grounds for appeal are very limited. The main grounds for sacked employees to appeal are that proper procedure was not followed - e.g. that they were not warned, or were given no chance to reply to the complaint.
It is possible to make a case that the dismissal was unfair in substance and not merely procedurally; but the onus is on the sacked employee to prove this. And even if a dismissal seems a violation of free speech, if there are promulgated rules or codes which look like warranting the dismissal, the onus is on the employee to show that they do not.
So I see the following point as crucial.
In a context where the onus can be placed on management to prove that a sackable offence has been committed, sloppiness and vagueness in the formulation of the code under which the charge is laid can perhaps be to the advantage of the dismissed employee; but in the actual context, where the onus is on a dismissed employee to show that the code has not been breached, such sloppiness and vagueness can make this almost impossible. So it can enable management first to get rid of critics and then to deny them redress.
In the light of this, let's look at the proposed draft code.
I thank the Vice-Chancellor for making so widely available the analogous sections of the proposed La Trobe draft and the existing University of New South Wales code; for nothing could so clearly highlight the grounds for objecting to the former.
The UNSW code forbids false representation. "Members of staff should refrain from representing themselves as spokespersons for the University unless authorized to do so." The offence is clear. So, should someone be dismissed for it, is a ground for appeal: that one did not in fact so represent oneself.
The La Trobe adaptation says that "any information released must not be such that it could be construed as representing an official policy or position of the University unless it has been authorized by an appropriate officer." (I pass over the semi-literate conflation of "information" with "policy".) The offence here is nicely vague, and it is not clear what could count as defence. If someone is widely known as an academic from La Trobe, what they say could easily be construed by some as representing a position of the university. Likewise if a sub-editor identifies a letter or article of theirs as being by a La Trobe academic. Perhaps constantly making explicit disclaimers like "of course this is my own opinion, not that of the University" would do the trick; but these tend to be removed as nervous tics by editors with any sense of readability. No articles in education, genetics, history or philosophy, none e.g. of Robert Manne's or Geoffrey Blainey's pieces for the Age or the Australian, include such disclaimers.
Everyone in the University was sent a Message from the Vice-Chancellor in which, in his inimitable prose style, he castigated, denounced and excoriated the NTEU for its objections to the draft Code of Conduct.
The V-C says that the draft "merely insists that if the view being expressed does not relate to the expertise in respect of which the exponent is a staff member, then the view must be made in a private capacity and the responsibility for it accepted by the individual concerned."
About his own impeccable intentions the VC may be the highest authority; but on matters of fact, such as what proposed drafts say, his claims are subject to check by reading the documents.
The UNSW code says "where such comments are offered by academics as members of the University it is expected that these commentaries will lie within their expertise". The La Trobe adaptation reads "where informed comments are offered by staff it is expected that commentaries will lie within the areas of expertise of the commentators". The qualification "as members of the University" has been omitted. The obvious effect and so the presumable purpose of this omission is that it would cease to be a defence that one was speaking in a private capacity.
So it was reasonable for Dr Gideon Polya to be worried that it "could conceivably prevent a biomedically-oriented scientist from publishing scholarly analysis of the causes of current global starvation-related death (currently about 20 million per year), this being deemed to be the province of political scientists, economists and sociologists." The clause could easily be used to arraign those who speak out in a way that seems to go beyond the expertise deemed to be related to their appointment. I hope and indeed trust that our present management would not do this; but the issue is not whether current authorities are wicked or stupid enough to suppress free speech, but whether the proposed code enables authorities to. If it does, it is a threat to academic freedom. And it does.
It would be irresponsible simply to assume that managements will always have such goodwill that they would never want to silence critical or embarrassing voices. We can all hope they will; but pious wishes are not enough. We should ensure that we do not pass legislation that would protect such threats from appeal. And it would be totally irresponsible for the NTEU in particular either to refrain from objecting when such legislation is proposed, or to be cowed by an abusive reply.
The VC's reassurance on this matter is in error. For the draft clearly insists that "where informed comments are offered by staff it is expected that commentaries will lie within the areas of expertise of the commentators".
The La Trobe draft added a marvellously unclear prohibition. I know of no analogous remark in any other University's code. Perhaps there is one; indeed, I hope there is, for it seems that only by seeing from what original this was adapted would there be any way of working out what the local clause might be intended to mean. The injunction is not to "make public comment which might prejudice consideration of institutional procedures or the consideration of policy issues by appropriate bodies or officers of the University."
Dr Polya made a valiant attempt to make sense of this, speculating that it "could prevent a scientist from making informed, socially responsible public comment on environmental violation that nevertheless conflicts with a public (or indeed secret, commercial-in-confidence) corporate-university research or development agreement." I don't see that the clause is clear enough to do this. If dismissals were decided by independent judicial tribunals, the vagueness of this clause would make convictions extraordinarily unlikely. But where dismissals are in effect made by those bringing the complaint, the only protection for free speech would lie in a clear case that the dismissal was unfair in terms of the promulgated code. Here the vagueness of the code makes it very difficult to mount such a defence, and so constitutes a threat to free speech.
The meaning of the changes made to the UNSW draft may be obscure, but the effect is clear enough. And it is the same in each case. It is to remove what could otherwise have provided a fairly clear defence against unfair dismissal: showing that the alleged offence had not in fact been committed. If this was not intended, the redrafting was peculiarly incompetent, and that the changes were all in this direction an extraordinary coincidence.
"It would be otiose", the VC declared, "to address all of the detailed inaccuracies in the NTEU memorandum, but it is important to refute the emotive and palpably false claim that the Draft Code of Conduct in some way inhibits academic freedom. It does no such thing."
We have seen three ways in which he is (palpably, if you wish) mistaken about this.
Alas, it is not otiose but necessary to correct still more of the inaccuracies in the VC's account of the draft code.
He claims that it "simply affirms the widely accepted principle that the University cannot be put in a position where it is held responsible for public statements by staff when there are of a personal nature or do not derive from their acknowledged expertise as university staff." Perhaps unintentionally, this suggests that where their views do reflect their expertise, the University can reasonably beheld responsible for them.
This is alarming, because the draft also says that where their comments "might reasonably be interpreted to represent the views of the University, staff should ensure that they have proper authority granted by a person holding actual authority on behalf of the university".
So the draft clearly says that we are expected to shut up except about what we are officially experts on; the VC suggests that on such matters, what we say might reasonably be interpreted to represent the views of the University; and the draft says that then what we say must be authorized.
Surely on this point again the NSW formulation is far superior, and the far greater control of speech that the La Trobe draft formulation would enable should be rejected.
The commonest threats to academic freedom in Australia have been when people speak within their areas of expertise. Two examples of people I knew:
An engineer published a report that was rather damning of the environmental and safety aspects of a company's project. He was sacked as a result. (As it happened his professor had been angling for a large grant from just that company.)
A professor of medicine led of one of the largest and most productive research teams in the country. He was highly critical of the overprescription of antibiotics and the heavy promotion of new drugs, and often told students that they were being trained largely to be sales representatives for pharmaceutical companies. There was intense lobbying from other professors whose grants came largely courtesy of such companies, to the effect that the man was a dangerous crank, and his team's funding should be stopped. It was.
In neither case did the threat come from central management. But academic freedom would obviously be threatened by having a code that could easily be interpreted as insisting that public pronouncements in the realm of one's professional expertise must be cleared by official authorities; and increasingly so, as such authorities become increasingly dependent on private piper-payers.
In berating the NTEU, the VC assures us that all the draft code wished to affirm is the "widely accepted principle" he cited. If this were true, it would be clearer to drop all the contentious clauses and replace them with the principle he cited. Alas, it is obviously untrue.
And of course responsibility for comments rests with the individuals who make them. (I would go further than the VC on this: for he seems to think that this does not apply if one is an expert, at least an authorized one.)
Perhaps it was the Vice-Chancellor's intention merely to affirm these principles. If so, he should have made his intention clear, read the draft more carefully, and rebuked whoever drew it up for so clearly and consistently going against his intention.
The VC suggested that the only way the draft could be criticized is by urging the University to "abandon the distinction between views of a private nature and views that might reasonably allow attribution to a person in his or her capacity as a staff member of the University", and challenged the NTEU to provide cogent arguments why the University should abandon this distinction.
I pass over the fact that he had just set in train legal proceedings to prevent the NTEU publicizing any such arguments; I presume the VC's sincerity, merely noting that quite often he seems not to inform his left hemisphere what his right hemisphere is thinking. A further instance: that he can sincerely bluster in this fashion shows that he had not grasped the issues I raised in §§ II and III and had totally forgotten the clause discussed in §IV above. So I hope that I have now made crystal clear, to him and to any who did not doubt his reassurances about the code's contents, strong reasons for thinking that the draft code indeed contained several threats to academic freedom.
And since he is so emphatic (and perhaps even intends) that the code contains no such threats, I trust that he will see that these clauses are at last removed or so changed that they do no longer constitute such threats.
Since the above was written the clause criticized in §IV has indeed been removed; for that, all credit where credit is due. So now only the clauses considered in §II and §III and the issue raised in §I need to be addressed. In the current EB negotiations the NTEU is insisting on this, and also claiming that protection like that provided for whistleblowers by the NSW legislation should be enshrined in the EBA agreement. We need to support it on these points.
Suppression of dissent website
in the section on Documents
in the subsection on Australian university speech codes