Columnist Bettina Arndt is confronted by protesters at La Trobe University earlier this month. Picture: David Geraghty
Columnist Bettina Arndt is confronted by protesters at La Trobe University earlier this month. Picture: David Geragh

Former High Court chief justice Robert French has warned universities face the risk of legislative intervention unless they provide a robust defence of free speech on campus.

In remarks that implicitly criticise restrictions on debate at several universities, the former chief justice rejected the imposition of rules designed to protect the feelings of the university community.

He also rejected the use of what he described as “an extended concept of safety” to justify restrictions on what can be discussed in public.

Mr French said university ­administrators, academics and student bodies should be required to overcome “a very high threshold” before seeking to prevent speech on campus by reference to its content.

His remarks follow a series of incidents in which universities and student groups have tried to prevent academics and public figures from discussing contentions subjects in public.

La Trobe University tried to prevent columnist Bettina Arndt from speaking on campus after organisers were told that her ­address questioning the existence of a rape culture did not align with the university’s campaign against sexual violence. The university later reversed its position.

Professor Peter Ridd, who questioned academic research on climate change, was dismissed by James Cook University because, according to the university, he broke a code of conduct aimed at creating “a safe and respectful” workplace.

In a speech delivered in Darwin’s Parliament House yesterday, Mr French said the threshold test for restricting speech on campus should not be the feelings of others and should be invoked only for matters that amounted to a breach of the law.

It was relevant for universities to have regard to the allocation of resources for event management and the provision of security staff.

But if the restrictions were too readily imposed on free speech, it would erode the public standing of universities.

“If the threshold is set too low in the interests of the feelings of the university community and ­applies an extended concept of “safety” in support of restrictions, the reputation of universities in the wider community which they serve might be at risk,” Mr French said. “The better approach is to encourage and maintain a robust culture of open speech and discussion even though it may involve people hearing views that they find offensive or hurtful.

“That is one of the prices we pay for a core freedom in this liberal democracy. It is not likely to be eroded.”

The former chief justice was delivering the Austin Asche ­oration for Charles Darwin University and Australian Academy of Law.

He warned that the actions of university executives were probably subject to the implied constitutional freedom of political communication.

“To the extent that universities, operating under the authority of acts of parliament which create them, make legal rules affecting freedom of speech, those rules would have to comply with the implied freedom,” he said.

“There is a question whether administrative policies would be subject to the same constraints. Given that university executives act under the authority of the law setting up the university and ­defining its powers, the answer is probably yes.”

Mr French said the public ­debate in Australia and elsewhere about protest action by academics and student groups was viewed by some as “a worrying intolerance for the expression at universities of views which some consider harmful”.

He pointed out that “harm” was a concept that involved contestable value judgments.

“What one person regards as harmful another may legitimately view as bearing no adverse consequence,’’ Mr French said.

While all universities were subject to the implied freedom of ­political communication, public universities in the ACT and Victoria were subject to the guarantees of freedom of speech in the ACT Human Rights Act and the Victorian Charter of Rights.

“Paradoxically, invocation of these provisions in the service of freedom is likely to cause difficulty for some who champion the freedom but do not believe it should be protected by law — a position which reflects a conservative view that such protections generally transfer too much power to judges,” he said.

He noted that universities in Britain were subject to provisions in the Education Act that impose “a duty to ensure, so far as is reasonably practicable, that the use of any premises of the university is not denied to any individual or body of persons on any ground in connection with their beliefs or views, policies or objectives”.

Legal Affairs Editor
Chris Merritt has been legal affairs editor at The Australian since 2005. He was previously at the Financial Review.