Universities were concerned that clause conflated the issue of free speech with academic inquiry, and some universities have since argued it would make it harder for them to discipline racist or sexist academics.
The Sun-Herald and The Sunday Age can reveal Mr French subsequently agreed to remove this element from his definition after the publication of his report, following consultation with a working group of university chancellors that was set up to review his findings. The public report still contains his original definition.
It is now unclear whether that controversial section will make it into the government’s amended university funding bill. Federal Education Minister Dan Tehan declined to comment on the proposed wording of the definition, but said he looked forward “to continuing to work with the crossbench to secure passage of the legislation”.
Mr French confirmed the clause’s removal in a letter to University of Sydney vice-chancellor Michael Spence, who wrote to him this week with his concerns that the unamended definition may be the version ultimately legislated.
“It was removed on the basis that it could be seen as relating to the general freedom of speech which academics should enjoy in common with everybody else,” Mr French wrote in his letter, dated October 1.
Mr French said the amended version was approved by the University Chancellors Council – which comprises the chancellors of every public university across Australia – and was sent to Mr Tehan.
Mr French said it was matter for the Parliament to determine the definition. “I do not take any position on which of the definitions is to be preferred,” he said.
However, he clarified that “as a general proposition no freedom, including academic freedom, is absolute.”
He said his proposed model code, which universities are currently implementing, makes clear that academic conduct can still be constrained by universities providing it is “reasonable and proportionate” to its need to protect students, staff, and research activities. All universities have agreed to adopt the model code by the end of the year, with some adaption permitted.
University of Sydney constitutional law expert Anne Twomey said whether the definition proved to be problematic could depend on whether the qualifications in the French Code were built in.
“However, the more prescriptive something becomes, the greater the likelihood in the future of unintended consequences, so care does need to be taken,” Professor Twomey said.
University of Melbourne law professor Adrienne Stone, whose expertise lies in free speech issues, said there was a “good case” for putting the French definition into legislation, but the protection for personal public commentary should be removed.
“The rights for academics to talk about their research should be very, very strongly protected. But once they get outside what it is that makes academia and their job special, then they should be treated like the rest of the community,” Professor Stone said.
Lisa Visentin is a federal political reporter at The Sydney Morning Herald and The Age, covering education and communications.