Greg Barns looks at the legal implications for universities, who last year adopted an IHRA-aligned definition of antisemitism, in wake of a large scale boycott of the Bendigo Writers Festival.

The large scale boycott of the Bendigo Writers Festival by authors is largely the fault of one of its partners, La Trobe University. This institution, like most others around Australia, is seeking to censor criticism of Israel and its genocide in Gaza. And if universities like La Trobe keep up this appalling exercise in appeasing governments and the Zionist lobby, then it seems inevitable that a High Court challenge to their rules looms.

La Trobe, like most other universities in Australia, decided to inflict harm on itself by adopting the clearly dangerous definition of anti-semitism known as the International Holocaust Remembrance Alliance definition.

In February this year, 39 universities adopted this definition of antisemitism. They confirmed they would enforce a definition that “closely align[ed]” with the IHRA. The elite group of universities known as the Go8 worked with the antisemitism envoy Jillian Segal on the definition.

The same Segal whose recent report recommends Trumpian-style funding bans on institutions that are “not doing enough” to combat antisemitism.

The IHRA definition of antisemitism is dangerous. So problematic is it, that in 2021, usually reticent retired English judges, along with leading lawyers, wrote to The Guardian to condemn it.

Amnesty International, in a media release in response to the Universities Australia announcement, summed up the chilling effect on freedom of expression and other rights when it noted the IHRA definition adopted by universities “dangerously conflates legitimate criticism of Israel and Zionism with antisemitism, weaponising accusations of racism to silence and repress student rights to protest and freedom of expression, rights that are protected under Articles 19 and 20 of the International Covenant on Civil and Political Rights. It does nothing to uphold safety or combat discrimination and serves only to suppress student activism and restrict political expression".

The University of New South Wales’s Lana Tatour wrote last year in the Australian Journal of Human Rights that “the IHRA has created an environment that enables scapegoating, intimidation, harassment, doxing and persecution by groups that launch well-orchestrated McCarthyist campaigns that target students and academics, including anti-Zionist Jews, and particularly Palestinians, Arabs, Muslims and people of colour". She is right. Academics and students are under constant surveillance by university administrators ready to pounce if there is a whiff of severe criticism of Israel and the Zionist lobby.

Once an Australian university sacks, expels or suspends a member of staff or a student for “offending’’ against the IHRA definition, there is a real chance of a High Court challenge based on the implied freedom of political communication.

The implied freedom of political communication first emerged in a series of High Court cases in the 1990s. It is not a right as such, but a restriction on government. As Professor Sarah Joseph of Griffith University explains it, the implied freedom “applies where a legal ‘burden’ is placed on political communication, which is defined as communications on matters that might affect a person’s federal vote, their opinion of the federal government, and constitutional referendums”. The definition has been interpreted by the High Court to encompass communication about virtually any topic that can be viewed as political, says Professor Joseph.

It is not an absolute freedom. A law can restrict political communication if it is for the purpose of a legitimate aim, and the law is generally proportionate to the aim in question.

Importantly, the implied freedom applies to universities. As former High Court Chief Justice Robert French said in 2018; “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.”

So La Trobe and other universities around Australia are on notice. Regulations, codes of conduct and policies made under legislation that impinge on protests and discussions supporting the Palestinian cause and making strident criticisms about Israel and individual and group supporters of its policies in Gaza, could be, depending on their scope, ripe for a constitutional challenge.

It is extraordinary that Australian universities would adopt the IHRA definition. The truth must out. Why did they do it? Who put pressure on them and why did they succumb?

In the meantime, expect more boycotts by principled authors, musicians, artists, academics and students against this attack on freedom of speech. But let’s hope the High Court gets a chance to look at the rules imposed by La Trobe and other institutions.

The views expressed in this article may or may not reflect those of Pearls and Irritations.