Academic freedom as insubordination: the legalisation of the academy

Australian academics, like their overseas counterparts, have, over recent years, felt an attenuation of the freedom traditionally ascribed to the academic. This attenuation has been accompanied by termination of employment, legal proceedings, and limitations placed on use of facilities or previously enjoyed freedoms. This paper considers the notion of academic freedom, and its traditional justification. It assesses the basis of that justification in the changing environment of higher education, and asserts that the need for academic freedom is not diminished by the commercialisation of the academy. Quite the reverse is the case. The paper considers the legal justifications for attacks on academic freedom, and the premises upon which they are based, with a view to arming the academic against such justifications.     

Crisis,justice, and managing the appetite for risk

Jindal Global Law Review - The phrase ‘never let a good crisis go to waste’ is often (mis)attributed to Winston Churchill. It expresses the common perception that the sentiments evoked...     

Sausage rolls and sports fields: the debate over voluntary student unionism in Australia

The Australian Federal Government recently amended the Higher Education Support Act 2003. The effect of this amendment, which came into force on 1 January 2006, is to abolish compulsory up-front fees for the funding of student unions. Voluntary student unionism has been a plank of the Liberal (conservative) platform for many years, but its introduction is as unpopular with universities as with student organizations. This paper analyses the reasons for the introduction of the Act, and the debate over the introduction of the Act in universities and in the media. It considers some fundamental misapprehensions in the origins and rationale of the Act.     

Claims against a university: the role of administrative review in Australia and the United Kingdom

The recent decision of the High Court of Australia in Griffith University v. Tang denied judicial review to a student aggrieved by the decision of a university to exclude her. This article analyses the role of judicial review of university decision-making in the United Kingdom and Australia, analysing the justification for administrative remedies in universities. It considers the legislative reform of administrative review in Australia, and the impact of that reform in some states. It places administrative review in the context of the visitorial jurisdiction, where that jurisdiction still exists. Finally, it addresses some of the policy aspects of denying judicial review in the case of the university.     

Traders of the lost ark — lectures and liability

It is easy to become inured to students' common perception that lectures are what universities provide — that the attendance at lectures is the total of a student's university experience. It is fruitless to deny that lectures, and sometimes tutorials, are the students' primary connection with the modern university. It would be interesting if the delivery of lectures was considered to be conduct in trade or commerce, capable of attracting the operation of consumer protection statutes, such as the Australian Trade Practices Act 1974 (Cth). This article will investigate several Australian cases which have considered some aspect of universities' liability for misleading conduct. It will also consider more a fundamental question — should universities be exposed to liability for this type of activity?     

Suing the Alma Mater: What loss has been suffered?

The commercialisation of the university sector has introduced a real possibility of litigation by dissatisfied students. Various difficulties occur, however, in the analysis of the element of a case in negligence. This article considers the existence of compensable harm suffered by a student suing for generalised 'failure to teach'. It considers recent cases in Australia and the United Kingdom within and outside the context of educational negligence to conclude that compensable damage is a theoretical possibility. It also considers problems of causation, and concludes that the cumulative difficulties of establishing compensable harm and causation provide a significant disincentive to sue in negligence for generalised failure to teach.