To paraphrase the US conservative commentator Victor Davis Hanson, ‘95 per cent of university academics are politically left while 100 per cent of university administrators are’. That strikes me as about right in Australia too. Which brings us to Professor Peter Ridd and his dismissal from James Cook University. As virtually every Speccie reader will by now know, last week Ridd lost on appeal in the Federal Court, 2-1. The majority justices, in a joint judgment, held for JCU, while Justice Rangiah, in part, went with Ridd. Now before I take you briefly through the key parts of the decision, let me remind you of the core factual background. Back in 2016, Professor Ridd took issue with some colleagues and their claims about the state of the Great Barrier Reef. Ridd thought what they were saying about the reef was untrustworthy, misleading, even fraudulent. He said so on TV and online, without the well-mannered urbanity, politesse and civility one might find in the finer salons of Victorian England. JCU brought disciplinary proceedings, tried to impose confidentiality on those proceedings and in May 2018 fired the professor. Ridd sued and won at first instance, awarded a little over a million dollars in damages. JCU, using your tax dollars, took that to appeal. And last week they won, 2-1.
The core issue was how to read the ‘intellectual freedom’ provisions in the Enterprise Agreement (EA) against the Code of Conduct. EA Clause 14.1 states that JCU is committed to intellectual freedom (though with in-built limits in 14.3 regarding bullying and intimidating, etc.) and to the Code. EA Clause 13.3 says the Code is not intended to detract from Clause 14’s intellectual freedom. And the Code, in a nutshell, imposes all sorts of limits on the full-blooded, vigorous, satirical exchange of ideas. JCU basically argued that the exercise of intellectual freedom was subject to the Code, so breach the Code and that can be misconduct and serious misconduct and sayonara to the outspoken professor. Ridd, by contrast, essentially argued that the Code cannot limit his Clause 14 intellectual freedom – best argued in terms that where there is inconsistency between the EA and Code, the former prevails.
Now I have slogged through the detailed legal arguments from the majority justices and dissenter so you don’t have to. Leave aside ancillary issues as to suggestions of supposed pleading errors and on JCU’s scope to impose draconian confidentiality terms (where the dissent is clearly correct in my view). The key issue was whether a) the EA is subject to the Code (majority’s view) or b) both apply, but where there is inconsistency, the EA prevails (dissenting view). And on that core point I confess to readers that both readings are plausible if we are asking the question in a dry, technical, interpretive sense. That is how badly drafted they are. Yes, I am slightly more persuaded by the dissent. But the drafting is terrible and it is certainly plausible to come to the conclusion the majority did.
What is not plausible however is to believe that the normative implications of the joint judgment, the majority view, are anything other than ghastly. On the majority view there simply is no academic or intellectual freedom in Australia, or at least at JCU. It is palpable nonsense to think the JCU Code of Conduct, if determinative, leaves any real intellectual freedom in play at that uni. Sure, it may be a close call whether that’s what the legal words in play dictate (again, I don’t think so, but it’s not implausible). But that’s a God awful outcome if so.
Here are just a few of many problems with where this case leaves us. First off, Ridd was alleging something between slipshoddiness and fraud on the part of his colleagues. As the dissenting justice says, you can’t do that in any way that is respectful (or do so in keeping with any of the other desiderata of the Code of Conduct). And if you can’t allege what Ridd did, a factual claim, without the uni hammering you, trying to silence you and ultimately firing you then there simply is no intellectual/academic freedom. Full stop. The majority judgment puts university academics in the position of senior public servants, with the same duty to work for the boss and not be disrespectful and with no real tenure.
Secondly, Ridd could never have been fired in the US or Canada where they do have real tenure. I even checked with a bunch of US legal academic friends. Ridd might be denounced, defriended, or made to teach lousy courses at lousy times. But he could not be fired. Expressing your views in a biting, mean, vigorous, public, satirical way is what tenure protects. In my view it is on occasion what is demanded in the service of truth. (God knows I’ve done it myself enough, sometimes directed at the High Court of Australia.) The remedy for those whom Ridd attacked is to respond and say why he’s wrong. To my knowledge they have opted not to do that. As I said above, the majority justices may have a plausible reading of these incompetently drafted words, but it is one with very, very unpalatable implications.
Thirdly, think back to the quote at the start of this piece. In a world with few conservative academics the behind the scenes reality is that JCU and five unions come up with an EA. And then the vice chancellor and her top people draft a code. Take it from me, consultation on the latter is perfunctory only and many conservatives will be like me, never joining a union. So those on the right side of politics have no say at all into any of these terms and conditions. It’s like a standard form contract, only worse because the Code can change after you start work. So can the EA for that matter.
Fourthly, any code of conduct (written in effect by the vice chancellor, as both judgments concede) can and will be discretionarily enforced. No, that’s wrong. It will be highly discretionarily enforced. If those Ridd criticised, the orthodox Barrier Reef academics with the ARC grant, had said of Ridd what he said of them, everyone with a brain knows nothing would have happened. Or if some social justice protesting academics in a university said something about a conservative academic the Code would be used much differently than were it vice versa. Does the minister Dan Tehan really wonder why there are so few right-of-centre academics? Is he in a coma somewhere? I know Morrison never wanted to fight for free speech (suggesting 18C was ‘a third order issue’) but this is now very serious.
Let’s hope the High Court grants leave to appeal. Likewise, let’s hope that after seven straight years of Coalition governments, impotent on all culture war matters, they wake up and do something on this front, rather than trust to the luck of whether a particular uni has a tolerable EA and Code of Conduct. I suggest mandating the Chicago Principles (not Robert French’s more insipid suggestions) on every university in Australia.
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