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 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, HLA. 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 James Cook University 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 over-rides the University’s disciplinary processes that include confidentiality requirements, the High Court gives an emphatic win to JCU. 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 were 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, 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 in The Australian the next day about the disciplinary process, and now be out of a job.) Still, the HCA’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, maybe as Mark Steyn regularly comments, ‘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 refused to stand for the national anthem, talked of ‘Invasion Day’, disparaged the history of this country, were openly hostile to (and about) Coalition PMs, and so on, that would not be seen as a problem at all.
For 90 percent 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.