Last week’s High Court decision in the Peter Ridd v. James Cook University case has already received plenty of attention. More than a few commentators, including those with right-of-centre political leanings like Henry Ergas and Janet Albrechtsen, have characterised the decision as a win for academic freedom (albeit as a loss for Mr Ridd himself). I’m sorry to tell readers that I thoroughly disagree. I read the decision as an exercise in pettifoggery and misdirection, where the five-judge panel and its joint judgment indulges in some virtue-signalling about academic freedom when it doesn’t count but, when it does count, academic freedom loses to the university’s (JCU) code of conduct and in particular to the way JCU conducted its disciplinary hearings with their confidentiality provisions that covered the fact and nature of the charge, result and punishment. In practice, Ridd loses and is out of pocket some half a million dollars or more, all up. A chilling signal has been sent to other academics. Meanwhile the HCA judges claim that this particular result was all due to the way the case was run, which is not only lame (given what we know about the steps these judges will take to get the result they want in other cases) but to my way of thinking is a highly implausible criticism.
Let’s start with some background. Every once in a while when a rule-maker sends a rule out into the world that rule hits a situation where it doesn’t clearly deliver an answer. There are plausible arguments for saying it applies and plausible ones for saying it does not; for thinking the plaintiff should win but equally for supposing the defendant should win. Call these unusual instances of indeterminacy ‘penumbral cases’. That’s not my insight by the way. It’s the insight of the greatest legal philosopher of the 20th century, H.L.A. Hart. In such rare cases the judges effectively have discretion. They have scope to plausibly decide either way.
Now back last year when the Full Court of the Federal Court decided this case 2-1 against Ridd I said this looked like that sort of case to me. If you took a narrow, legalistic, pettifogging view of the legal texts, one that downplayed a proper scope of academic freedom, you could make out an argument for JCU winning. I said as much in the pages of this weekly. But I also said there was at least as strong a case for Mr Ridd. There was scope for the judges to go either way but if you put any value on academic freedom at all Ridd should win. Now what has happened in the High Court is that all five judges, in their joint judgment, broke the case down into two parts. In the first part, the High Court slammed the majority Federal Court decision’s enervated understanding of academic (they call it ‘intellectual’) freedom. Of course academic freedom is important the High Court says; of course it trumps the need to treat one’s academic colleagues with respect and courtesy it intones. Clause 14 of the enterprise agreement, with its intellectual freedom protection, does not lose to the code of conduct’s ‘play nice’ diktats according to our top judges. So that’s all to the good. And that’s what the Albrechtsens and Ergases of the world want to emphasise and revel in.
However, I said the High Court breaks this case down into two issues, not one, and as regards the second issue – whether the enterprise agreement’s intellectual freedom provision overrides JCU’s disciplinary processes that include confidentiality requirements, the High Court gives an emphatic win to the university. Be clear now. The judges say that the university’s initial disciplining of Ridd (for what he said about the Barrier Reef and about his colleagues) was wholly unwarranted. Dr Ridd should not have been given the original 2016 censure. But part of the later ‘final’ censure followed by the termination decision was justified, say our top judges. Why? Because for them academic freedom does not extend as far as protecting an academic who openly protests against the way the university runs its disciplinary proceedings, thereby breaching confidentiality. In other words, the confidentiality requirement beats academic freedom. This is as hollow, emasculated and enfeebled a notion of academic freedom as you’ll find. It amounts to this prescription to all academics: if your university wrongfully tries to silence you when you speak out and it wrongfully takes disciplinary proceedings against you, you just have to be a good little boy. No rising to the JCU bait. No talking to anyone about what’s happening to you. Just go through the university disciplinary proceedings and trust them and the people who screwed you over in the first place. How do you raise money to contest those proceedings if, like me, you’re not in the union and you can’t tell anyone about them? Details my friend. Just bask in the warm knowledge that at some point down the road, after suffering through the university’s proceedings, you will be able to engage a top QC, bring judicial review proceedings, and then all can become public. It reminds one of Anatole France’s line that ‘the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges’. If by fluke you’re a multi-millionaire academic (like our world’s highest paid vice-chancellors) the practical effects of this ruling won’t bother you too much. For all other academics it will have a significant chilling effect. No matter how disgracefully you are treated there is no going nuclear says our High Court. (Full disclosure: had I been treated the way Ridd was after voicing his views about the Reef I’d have had an op-ed out the next day about the disciplinary process, and now be out of a job.) Still, the court’s advice is to trust to the university process for a few years, without telling anyone, and all will be well (if you manage to afford a lawyer and win your eventual judicial review action). Or, as Mark Steyn regularly comments, maybe ‘the process in these sort of things is the punishment’ and so most academics (not being hot-heads like me) will just weigh things up and opt to keep their controversial views to themselves. Come on Henry and Janet. What do you think is likely to be the response to this decision by most academics? I work with them. Bravery is not the most notable virtue of academia.
It gets worse of course. That’s because if we leave aside actual criminal behaviour (which is covered by the code of conduct and in that realm is uncontentious) and focus on the expression of views, the background truth of the matter that no judge dared mention is that universities across the Anglosphere are today places of monolithic orthodoxy. Untold studies have shown that conservative viewpoints on campus have collapsed in the last half century and are today the equivalent of endangered species. I could never be a law school dean because I would never do an acknowledgement of country (it’s patronising, condescending tosh in my view) or administer the various affirmative action programs. But if you refuse to stand for the national anthem, talk of ‘Invasion Day’, disparage the history of this country, or are openly hostile to (and about) Coalition PMs, and so on, that would not be seen as a problem at all. For 90 per cent of academics subscribing to the usual left-leaning pieties it is hard to imagine a university anywhere in this country invoking the code of conduct against them. For them there is no free speech problem – which is why Robert French’s claim is true in a technical sense, but only in that sense. You have to be an outlier, an iconoclast, a dissenter, or yes a conservative – maybe a global warming sceptic, a transgender sceptic, against lockdowns, someone who is against ‘the Voice’, etc., – and then we can imagine the code being invoked. But that’s precisely when academic freedom is supposed to come to the aid of the unorthodox viewpoint. Alas, according to the High Court in Ridd this intellectual freedom guarantee can let you speak to start. But when the university opts to come after you for doing so, you have to be a good little boy. Keep shtum! Trust the process. But the point is that Ridd didn’t trust the process. I wouldn’t have either. Justice Rangiah in dissent in the Federal Court, described the university’s confidentiality process that the majority of the Federal Court (and now the High Court) said you had to succumb to as ‘a Kafkaesque scenario of a person secretly accused and secretly found guilty of a disciplinary offence but unable to reveal, under threat of further secret charges being brought, that he or she had ever been charged and found guilty’. Nowhere did the High Court say that Rangiah’s characterisation of the proceedings was wrong; only that Ridd should have meekly submitted to them. Heck, at one point Ridd was told he couldn’t even tell his wife what was happening.
That’s the big picture. Here are a few more legalistic points. 1) on the High Court reasoning an academic cannot be punished for speaking but can be punished for complaining about being punished for what we now are told he could rightfully say in the first place. ‘The scientific institutions are crooked’, can be said. ‘They’re so crooked that I’m now being punished and told to remain silent for saying they’re crooked’, cannot be said. Go celebrate, Henry! 2) The High Court said the 2017 Final Censure and the 2018 Termination Decision could, in effect, be compartmentalised and operate independently of the original sin, the 2016 First Censure for which the HCA says Ridd couldn’t be punished, as well as the Sky news part of the 2017 Final Censure. So in a counter-factual world the university, properly acting in 2016, would never have charged Ridd and found him guilty; would have had next to nothing to charge him with in 2017; and hence there would have been next to nothing to breach confidentiality about. 3) The Final Termination was built on the 2016 and 2017 Censures. It could only be made independent of the university’s original sins by separating out the breach of confidentiality to stand on its own. But severing them in that way is nowhere dictated by the terms of the enterprise agreement. It was a judicial choice in one of those Hartian penumbral instances. The law left either option open. Our High Court opted, in practice, for the pettifogging, academic freedom-enervating choice. 4) The High Court claims this result flowed from the way the Ridd legal team argued the case, as an ‘all or nothing’ matter. I think that is flat out misdirection. Ridd pleaded that all 18 pieces of alleged misconduct were related exercises of academic freedom. JCU pleaded none were. So JCU also argued the case in an ‘all or nothing’ manner. If this was a cumulative process then JCU’s effective illegalities as regards the 2016 and part of the 2017 Censures infected everything. The termination could not stand. If JCU’s two main, original grievances against Ridd (the 2016 Censure and part of the 2017 Censure) could be severed away from the later process wrongs then the termination could stand. That’s what the High Court opted for, but why didn’t JCU have to plead this I wonder? And why did the High Court rule that the whole disciplinary edifice that was built on shoddy foundations could be repackaged as a new, smaller building with all the original lower floors removed? Do they do this in administrative law cases when there is a flawed first step or two? In other words, why is there an implicit assumption that the onus was on Ridd to make out every single element or lose the ‘all or nothing’ bet, rather than on JCU? Even an incident-by-incident attempt to show ‘when Ridd did this it wasn’t covered by confidentiality’ could not have won the case. At some point Ridd needed academic freedom to be deemed more important that submitting to the Kafkaesque (Justice Rangiah’s word, not mine) disciplinary proceedings, with their onerous confidentiality requirements. It’s not as though Ridd’s legal team could go back in time and stop him from speaking out. And why should he have to keep quiet, in a country where academic freedom was taken seriously? 5) The breach of confidentiality example that the High Court gives to show its importance is of someone naming another individual involved. Ridd never did that. He attacked the process of JCU itself. Not the same, are they? And the example Janet Albrechtsen gave was of two people freely entering into a non-disclosure clause as part of a settlement. An imposed confidentiality directive is not the same as a confidentiality agreement. 6) Last point. This is the same High Court that is as activist as any Australian iteration since I arrived here in 2005. The Kiefel Court has imported proportionality analysis from Europe and Canada even though that sort of analysis is based on having an entrenched and powerful Bill of Rights. It effectively asks judges to tell the rest of us whether they think a democratically enacted law is reasonable or not. No one gave them that legislative-like power here, as they did in those other jurisdictions. They gave it to themselves. And last year they decided – made up out of thin air based on deconstructionist notions such as ‘otherness’ – the Love case where they gave themselves the power to invalidate a statute based on nothing anywhere in the Constitution. It might have been the worst reasoned case I have ever read, and I have read a lot for my sins. And yet, in an actual penumbral case where it was legitimate to go either way, they went with JCU. Ridd lost his job. He lost hundreds of thousands of dollars. A chilling message was sent. If that’s a victory for free speech I’d like to see what a loss looks like.
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