Features Australia

At the fork in the road, the High Court took the low road

The Ridd decision is comic farce

6 November 2021

9:00 AM

6 November 2021

9:00 AM

There is a story from the Cold War that may be apocryphal but deserves to be true. It’s difficult enough to teach any one system of jurisprudence, an Oxford professor of comparative jurisprudence was asked, but how do you teach comparative systems? ‘The trick’, he replied, ‘is to remember there are only four root systems’. In England everything is permitted unless specifically prohibited in law. In Germany, anything not specifically permitted is forbidden. In France, everything is prohibited in theory but permitted in practice. In the Soviet Union, everything is permitted in principle but proscribed in practice.

Ridd’s High Court verdict, less Solomon’s judgment than Kafka’s bureaucracy, in effect puts academic freedom into the last of the four categories. Janet Albrechtsen, Henry Ergas and George Williams are among those who believe it’s ‘a mighty blow for academic freedom’ and a big smackdown of James Cook University. In a critical defence of intellectual freedom as the foundation stone of society’s search for truth in the contested marketplace of ideas, they hold, the court upheld Ridd’s right to challenge colleagues robustly. Yet Ergas acknowledges that ‘whether the issue of the breaches of confidentiality can be so neatly severed from the exercise of intellectual freedom’ is ‘questionable’. Morgan Begg in the Australian and James Allan and Matthew Lesh in The Speccie argue the contrary position.

For practical purposes, the Court accepted the importance of academic freedom in principle but ruled that a university can conduct an investigation in secret and compel academics to silence, even with their spouse. Among other consequences, this would prevent the academic from raising funds to fight the case. Begg calls out this ‘star chamber disciplinary system’ as a violation of natural justice. Lesh highlights the Catch-22 in which it entraps academics, referencing Joseph Heller’s 1961 novel in which, to escape highly dangerous bombing raids, an officer could plead insanity, but the very fact of doing so proved his sanity and the appeal was rejected.

I write firstly as someone born in India shortly after independence with an appreciation of the role played by the powerful, independent and activist Supreme Court of India (SCI) as the custodian of the constitutional values of the Republic. It rarely defers to the executive in any area of governance no matter how sensitive. If anything, it has too often overstepped into legislative and executive domains. It’s been aided in this role by two unusual features. As well as comprehensive appellate jurisdiction, it has exclusive original jurisdiction (cases heard directly in the SCI) in disputes between different states, and between one or more states and the central government. Under Article 32, citizens also have the right to move the SCI directly for the enforcement of fundamental rights enshrined in the Constitution. Second, since the 1980s it has institutionalised ‘public interest litigation’ whereby people with no direct standing in a dispute can nonetheless initiate legal action on matters of public interest. In part this was a reaction to the shameful capitulation by the SCI to Indira Gandhi’s Emergency (1975–77), that was similar to the current unlimited, unchecked and unaccountable expansion of state power using the public health emergency. Justifying the practice, in S.P. Gupta v. Union of India (1981) the SCI held: ‘it must not be forgotten that procedure is but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities’. Contrast this with our High Court’s prioritisation of procedural requirements of a university’s code of conduct over intellectual freedom.

Moreover, restricting academic freedom to an academic’s area of expertise sounds the death knell for the concept of a public intellectual. The world would have been intellectually impoverished if the likes of Noam Chomsky, Jordan Peterson, Roger Scruton and Thomas Sowell had been restricted in their engagement with pubic issues to matters solely within areas of formal expertise.

I write secondly not as a legal academic but as a political scientist for whom the judiciary functions within the broader prevailing cluster of laws, norms and values that collectively constitute the social purpose of the polity. When matters of first principle are involved, a narrow legalistic judgment fails the test of justice being seen to be done, becomes an act of self-harm and lowers the pedestal on which the nation’s highest court stands in public esteem. The public is more interested in a justice outcome broadly understood, not simply a legal verdict based on a strict reading of the law.

I write thirdly as someone who has straddled the roles of professor and administrator. The United Nations system is an international bureaucracy without the normative anchor of a cohesive and coherent national political culture. The UN University operates in an international environment of considerable politicisation. Navigating the treacherous terrain between bribery and bullying, we didn’t succumb to inducements/pressure on appointments, free platform for exchange of ideas that made some governments uncomfortable, and Israeli participants in a project on the long-term impacts of the 2003 Iraq War. As a professor, because I have taken part in public debates for decades and sometimes expressed forceful opposition to the prevailing political fad of the day, I’ve faced many calls from angry governments and members of the public to be sacked. This comes with the territory as a public commentator on issues that arouse strong passions. I’ve been fortunate in that every top boss, including Kofi Annan, defended my right to express my views. I’ve never been rebuked for my writings although I’ve been fired from an administrative post trying to protect university autonomy.

So yeah, I know something of the practicalities of intellectual freedom. Ridd is out of pocket by several hundred thousand dollars and out of a job. The backhanded compliment to academic freedom won’t pay the rent. No administrator lost money or a job. An administrator will take that as a win, flick off the speck of criticism, refine codes of conduct in light of the judgment and be sure to remind erring staff that the right to enforce the code has been upheld. A professor will conclude: chill, keep quiet, don’t rock the boat, the public interest be damned. The bottom line is: this is the status quo the High Court has chosen to reinforce. It’s unlikely to change with a government and Prime Minister determined not to let principles compromise electoral pragmatism.

Scott Morrison follows Groucho Marx’s dictum: ‘If you don’t like this principle, I have a hundred others in the closet’.

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