Constraints on protest at Australia¡¯s most prestigious campuses, imposed following last year¡¯s pro-Palestinian encampments, potentially breach commitments universities had made to stamp out censorship.

A Melbourne legal academic says a raft of recent restrictions on things like indoor protests, poster displays and ¡°lecture bashing¡± could contravene the Model Code for the Protection of Freedom of Speech and Academic Freedom.

The code was drafted by then University of Western Australia (UWA) chancellor Robert French, a former High Court chief justice, as part of a review commissioned in 2018. Most universities adopted versions of the code, under pressure from the then conservative government, although a subsequent inquiry found that implementation had been patchy.

University of Melbourne law professor Joo-Cheong Tham said restrictions at multiple institutions appeared incompatible with the model code. It stipulates that constraints on free speech or academic freedom must be ¡°reasonable¡±, ¡°proportionate¡± and ¡°necessary¡± to allow universities to meet their legal obligations, ensure safety and well-being or discharge their teaching or research duties.

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Tham, an assistant secretary of the National Tertiary Education Union, said universities faced a ¡°legitimacy crisis¡± over things?such as?international student recruitment, vice-chancellors¡¯ salaries and underpayment of staff. ¡°Bundled up in that is how they¡¯re seen to manage the problem of antisemitism on campus.

¡°This problem is longstanding and acute, and the evidence strongly suggests it¡¯s increasing. However, these protest restrictions have very little to do with effectively addressing antisemitism.¡±

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He said it was hard to see how prohibiting student announcements before classes ¨C as UWA has done, and the University of Sydney proposes ¨C would alleviate antisemitism, which in any case was covered by racial and religious vilification laws.

Tham also took aim at bans on indoor protests at the universities of Sydney, Melbourne, Adelaide and UNSW Sydney. ¡°It¡¯s ridiculous to assume that all indoor protests are disruptive or pose a safety threat. These restrictions grossly overreach to capture a whole range of activities that do not pose any real threat to safety.¡±

He said such regulations could be open to legal challenge for breaching the model code, depending on how the code had been implemented at each university.

Melbourne rejected any suggestion that its recent rule change was unlawful. ¡°The university respects the rights of individuals to protest, which has not changed,¡± a spokesman said. ¡°This new rule makes it clear that indoor protest ¨C protest that obstructs entries or exits of buildings, or that unreasonably disrupts university operations ¨C is prohibited.¡±

Sydney said it had reviewed its policies following an from eminent barrister Bruce Hodgkinson. ¡°There are a range of views among our members, some sharply divided and strongly held,¡± a spokeswoman said. ¡°[We] are working hard to balance our community¡¯s rights to academic freedom and freedom of speech [with] safety and well-being.¡±

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Sandstone universities have come under fire for their handling of anti-Israel protests. Opposition leader Peter Dutton last year that Sydney vice-chancellor Mark Scott and chancellor David Thodey should both resign, ¡°if they had any shred of integrity¡±, for allowing Jewish students and academics to be ¡°discriminated against¡±.

The potential perils for universities have been laid bare by the Trump administration¡¯s treatment of institutions perceived as tolerating antisemitism, most recently in threatening to remove Harvard University¡¯s tax-exempt status and withhold $9 billion (?6.8 billion) of funding.

Tham said Australia¡¯s restrictions were considerably tougher than those applied when, as a Melbourne University student leader in the 1990s, he had participated in a campaign against tuition fees which included a peaceful occupation of the university council. ¡°Why are university managements responding to protest in a way that has not occurred in past decades?¡± he asked.

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recently in The Conversation, he listed nine types of restrictions introduced or proposed at eight universities since last May, and said some may contravene workplace law, enterprise agreements or the constitution.

¡°Enterprise agreements have the force of federal law, so if there¡¯s any inconsistency, they will prevail over these protest restrictions,¡± he told Times Higher Education. ¡°And [they] could be challenged for constitutional invalidity because of the implied freedom of political communication under the Australian constitution. The High Court has previously struck down anti-protest laws for breaching this freedom.¡±

UWA said its ban on pre-lecture announcements had been introduced to prevent ¡°unscheduled interruptions¡± in timetabled classes. UNSW said free speech rights on its campus were ¡°no different to freedom of speech anywhere in Australia¡±.

Monash and RMIT universities, which have active or proposed restrictions on student activities that could affect their institutional reputations, both said they supported free speech and kept their policies under review.

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john.ross@timeshighereducation.com