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Courting disappointment

By Dara Macdonald - posted Monday, 18 October 2021

It has been a disappointing week in the courts for freedom fighters - but this should only bring home the fact that changes in law have to be fought for on the floor of the parliament not by judicial activism.

This week we saw the High Court dismiss Peter Ridds' appeal and the NSW Supreme Court rule in favour of the Government's draconian Public Health Orders. Both of these decisions came due to a very narrow interpretation of the law in question (be it public or civil). Ordinarily, such a black-letter approach would be championed by conservatives (as in judicial conservatives not political conservatives) who usually end up complaining about judicial adventurism. But alas, the judiciary has proven again to be no friend of freedom and as such it is up to it's enthusiasts to win hearts and minds and the ballot box and vote with their feet rather than rely on the courts.

This week the High Court of Australia dismissed Dr Peter Ridds' appeal which hinged on giving an expansive reading of intellectual freedom in the Enterprise Agreement (as negotiated between the union and all Australian universities).


The story of Dr Ridd is well known by now. The former physics professor was sacked for publicly questioning the quality of reef science (including the peer review process) of some of his colleagues. The case was an all or nothing one, either the protection granted by intellectual freedom clause in his Enterprise Agreement was an expansive one that shielded him against the restrictions imposed on him by the university or whether the requirements in the code of conduct imposed on him by the university should be used to interpret the intellectual freedom he was permitted in the Enterprise Agreement. The High Court of Australia ruled the latter interpretation (as did the Federal Court of Appeals) and dismissed the hearing.

In short, the question before the court was simply which document forming the employment agreement between Dr Ridd and the university reigned supreme.

It is not everyday that such a bland employment law case would garner so much attention, but it did because it fundamentally alters the university environment. This entire case hinged on what intellectual freedom means for university professors in Australia and the court sided with the university over the professors - thus enabling the curtailment of intellectual freedom in all universities across Australia.

Given the unwillingness of universities to protect intellectual freedom - and one university to fight it in the highest court in the land - I hope people vote with their feet and forgo the university experience altogether if they can't even do what they are supposed to be there for.

The second disappointment came this week from a public law case.

Kassam v Hazzard and Henry v Hazzard were two cases heard together that challenged the Public Health Orders in NSW, which amongst other things detrimental to civil liberties, introduced mandatory vaccination in certain professions (both public and private sector). The judge decided in the government's favour on all grounds.


The reasoning for this decision was very narrow, the only question for the court to decide was whether the Public Health Order has been made legally according to the Public Health Act. All questions as to whether it infringed centuries old legal rights, like the right against self-incrimination, did not apply here and in fact "[t]o the contrary, the production of the material would exonerate them of any suspicion that they had breached the direction."

So much for innocent until proven guilty.

That this the key argument here: Public Health Orders merely restrict movement and don't even create offences merely administrative penalties and as such evidence of non-compliance can't be said to be incriminating…

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This article was first published on The Conservative Vagabond.

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About the Author

Dara Macdonald writes at The Conservative Vagabond.

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