They Ridd us of that turbulent academic

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 below, described the JCU 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 a properly acting JCU 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 JCU’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 wondered?  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 words, 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 got 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.