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Governments shouldn’t be able to censor research results they don’t like

Gagging clauses in contracts permit purchasers of research to modify, substantially delay, or prohibit the reporting of findings. stallio/Flickr, CC BY-SA

Governments shouldn’t be able to censor research results they don’t like

Gagging clauses in contracts permit purchasers of research to modify, substantially delay, or prohibit the reporting of findings. stallio/Flickr, CC BY-SA

Government departments and agencies routinely commission research to help them understand and respond to health, social and other problems. We expect such research to be impartial and unbiased. But governments impose legal conditions on such research that can subvert science and the public interest.

Gagging clauses in contracts permit purchasers of research to modify, substantially delay, or prohibit the reporting of findings.

A 2006 survey of health scientists in Australia shows such clauses have been invoked by our federal and state governments to sanitise the reporting of “failings in health services … the health status of a vulnerable group … or … harm in the environment …”. And in a paper published today in the Medical Journal of Australia (paywalled), I describe my experience of a contract negotiation with a government department where gagging clauses became an issue.

A rude shock

My colleagues and I were pretty happy when we were notified that our application for funding to study a new treatment for risky drinking had been successful. But then we received a draft contract with clauses that could potentially be used to sanitise the study findings, prohibit publication, or even terminate the project without notice or explanation via a “Termination for Convenience” clause.

That experience led us to initiate a formal study of the kinds of contracts governments use to purchase public good research in Australia. Draft contracts obtained through the Commonwealth’s AusTender website and its state equivalents show these documents often contain gagging clauses. And informal enquiries with universities suggest that Termination for Convenience clauses are common and accepted within the sector as a “cost of doing business” with government.

It’s important to note that these concerns don’t pertain to specialist funders of science such as the Australian Research Council and the National Health and Medical Research Council. What I am talking about here are government agencies that commission research to guide their activities and policy advice to government.

And while my area of expertise is health science, a brief examination of tenders for research in other domains suggests that gagging clauses are not unique to health.

Universities as the conscience of society

Private companies that provide research services to governments are motivated by profit, rather than public good, and may have no problem with accepting gagging clauses as long as they’re paid. But universities have ethical and legal obligations to serve the public interest.

A noteworthy aspect of my contract negotiation was that the university involved would probably have signed the restrictive contract offered. The experience of other health scientists and the government department’s comment in my case that the contract was standard (essentially asking what were we complaining about) suggest such arrangements are the norm.

But the idea that academics should be frank and fearless in their reporting and commentary is codified in the acts of parliament used to establish our universities, as well as in the Commonwealth’s Tertiary Education Quality and Standards Agency Act 2011:

The higher education provider protects academic integrity in higher education through effective policies and measures to: … ensure the integrity of research and research activity; [and] ensure that academic staff are free to make public comment on issues that lie within their area of expertise…

Universities have an obligation to the public and should be careful when faced with gagging clauses. Juli/Flickr, CC BY

Some reasons why

So how has this culture of suppression come about? I hypothesise four processes underpinning this phenomenon:

1) Governments are increasingly image-conscious and active in managing the information environment. Research seems to have become more a means of providing support for a policy position than for generating knowledge to guide policy.

2) Lawyers with experience in the corporate environment are more often being employed in government, drafting contracts that are adversarial in character where they used to be cooperative. A similar proclivity to employ lawyers from the corporate world in university research offices may have contributed to loss of institutional memory about universities' conscience of society role.

3) The squeeze on research funding from dedicated sources, such as the ARC and the NHMRC, has encouraged universities to compete more for government contracts.

4) Casualisation of the research workforce means people undertaking research are less able to be choosy about the kinds of projects they undertake.

Embracing partnership

In his seminal paper The Experimenting Society, Donald Campbell lamented the tendency of mid-20th-century American governments to commit to certain policy positions in the absence of evidence, rather than trying to generate the knowledge necessary to underpin better policy.

Similarly, Australian governments undertake policy experiments of one sort or another, perhaps every week, yet little is learned from them. These need to be recognised as opportunities to extend knowledge of how to generate wealth and well-being, and address society’s problems.

But that will require a change in the orientation of governments to recognising the need for evidence-based policy and, where evidence is inadequate, to contribute to generating relevant evidence through ethical funding of public good research. Effective partnership with scientists in the planning of evaluation is needed to accomplish that.

In turn, universities must revisit their founding principles, which include obligations to undertake research that benefits the public they are funded to serve, and to protect and encourage the role of public advocacy.

To be effective, there needs to be a sector-wide effort to modify the way governments purchase research. Situations in which secrecy about findings would be warranted would surely be rare and require strong justification.