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Alternative Law Journal |
Gill H. Boehringer
Gill H. Boehringer teaches law at Macquarie
University.
The ‘intellectual cleansing’ of Macquarie University Law School is by any measure an extraordinary event in the history of Australian academic suppression.[1] See also the article by Touchie and Veitch in this issue of the Journal (pp.26-29).
Over several years prior to 1998 the University administration circulated proposals for the restructure of the University. The thrust of the proposals was creation of three Colleges out of nearly 30 existing Schools, Institutes and Centres. Within each College would be a number of Divisions, each further divided into Departments. In late 1997 a proposal was made to merge the existing School of Law with academics teaching Business Law in the School of Economic and Financial Studies, creating a new Division of Law. It became clear in 1998 the University administration wanted the Law/Business Law merger irrespective of the views of staff.
The School of Law staff began discussing the issue of departmentalisation given the likely new College structure. Provisionally staff agreed on three departments: Department of Legal Institutions (DOLI), Department of Legal Theory (DOLT) and a Department of Law and Justice (DOLJ); the issue of Business Law merging into Law was put in abeyance.
During 1998 the University also identified various Schools where it was alleged financial problems made it necessary to shed staff, either voluntarily or compulsorily. The Schools of Chemistry, Law, Biology, Earth Sciences, History, Philosophy and Politics, and Modern Languages were identified as the places where such shedding had to occur. Some 40 academics had to go.
The NTEU (National Tertiary Education Union) challenged the University’s staff reduction plans both in the NSW Industrial Relations Commission and with the University directly. The Union claimed it had failed to follow the provisions of the Enterprise Agreement regarding workplace change. University staff at NTEU mass meetings in 1998 passed motions of no-confidence in the University administration and sought a public enquiry into university finances.
Meanwhile within the Law School a challenge was mounted on academic and intellectual grounds to the merger with Business Law. And at a Law School meeting staff voted against the merger. It is this challenge that is at the heart of the subsequent treatment of the members of DOLI.
In September 1998 a proposal emerged from a small group of senior law staff and Administration officials that claimed the only way the merger with Business Law could go ahead would be for the members of DOLI to be excluded from the new Division of Law.
In November the University Council considered the matter and by a narrow margin approved the Vice Chancellor’s recommendation for a Division of Law without the eight members of DOLI, despite their teaching involvement in the LLB program.
As there was a need, not least for professional admission purposes, to have a coherent approach to the LLB program, the University belatedly created an Institute for Legal Studies as an umbrella vehicle for administering the degree.
The exclusion of DOLI gains a special character from the numbers of lawyers involved from the Law School itself, the University Council and the University administration, since, as Touchie and Veitch demonstrate, it was essentially in violation of such lawyerly values as are associated with the rule of law and notions of natural justice.
Such lawyerly values were not considered an issue by those driving the decision. It was justified on administrative grounds. Whether the action was a violation of the Enterprise Agreement, requiring consultation, has not been resolved. The NTEU argued in the NSW Industrial Commission that the University had violated the agreement with regard to the Law School but the Commissioner did not make a finding on that issue. The Commissioner took the pragmatic approach — what is done is done and the 1999 academic year must get off to a smooth start.
Before analysing the event, let me make my standpoint clear. The Macquarie Eight,[3] including myself, have been kicked out of the newly created Division of Law and sent into exile in the Division of Humanities. We will be denied ‘any benefits, advantages or privileges’ of being a member of our own discipline, our legal education community. The quoted words come from s.24 of the Macquarie University Act 1989 which prohibits religious or political discrimination, although whether it applies in the present case is yet to be tested.
The exile is an extraordinary denial of our rightful claim to freedom of speech and academic practice. It is not just at Macquarie where this is a matter of concern. According to NTEU official Julie Wells, discussing an upcoming campaign for intellectual freedom, academics ‘see their rights and responsibilities to speak without fear or favour as integral to their role as university staff and their professional identity’ (Australian, 7.10.98), while the NTEU President links threats to intellectual freedom to ‘the international higher education reform agenda including increased reliance on private funding’ (Australian, 16.12.98).
While there are a number of ways of understanding the matter, it is also important to look at the incident in the general context of a university system in transition; and in particular, a university struggling to survive and compete in a climate of economic rationalism, globalisation and severe constraints in higher education funding from the public purse.
While there are local specificities which must be taken into account in any comprehensive account, what has happened at Macquarie represents a threat which academics at other institutions may well be facing now and in the years to come. Publicity is a major impediment to suppression and the story of the Macquarie Eight should therefore be told.[4]
What is particularly interesting at Macquarie is the method used, the justification proffered, and the willingness of the lawyers involved (with one honourable exception) to take extreme measures. Effectively, the University Council was told it was an emergency situation, because of the allegedly ‘dysfunctional’ Law School — while avoiding questions of procedural propriety and issues of substantive accuracy. The University simply failed to invoke its own By-laws (Chapter VII, cls 6-9) which would have enabled the investigation and testing of allegations made. Even procedural attempts to enable the University Council to properly deal with the allegations and possible solutions were summarily rejected by the Council chair.
The classical concept of infamy is a useful way to categorise the events at Macquarie. In Roman law, infamia, brought ignominy, disgrace and loss of some important civil rights. Infamia juris was the result of conviction for crime, infamia facti arose from supposed guilt which is not judicially established.[5]
At Macquarie, all members of DOLI were infamised by a process of infamia facti. Subjected to loss of rights, status and reputation or ‘benefits, advantages, privileges’ without conviction. Indeed without any formal charge and therefore no opportunity to answer their accusers or to put their own position which would have been a strong denial, and then some. For ‘reasons of state’ and, no doubt ‘for the encouragement of others’, the Eight were denied the legal protection which disciplinary procedures, adequately catered for under the Macquarie University Act and its By-Laws, would have provided.
This despite a public challenge to the Vice-Chancellor to institute formal disciplinary proceedings against members of DOLI. The Vice-Chancellor responded in the negative. She claimed the matter was not disciplinary but administrative. This after making serious but general and unspecified allusion to harassment and intimidation of colleagues by some members of the Eight. It is basic McCarthyism; the end justifies the means. We have then a modern, pernicious form of infamy. How to account for this strange process in what should be a major cultural institution in the lives of tens of thousands of students, staff and the broader community of which the University is a part?
It was probably hard for many Australians to believe the events on the Australian waterfront in 1998 had really happened. But the confrontation with workers by an employer’s private army did happen.
It is also hard to believe in an Australian University an entire Department would be infamed, isolated from their rightful institutional place, denied full membership in their discipline — without any attempt to ascertain the truth of (largely secret) allegations against them.
This is perhaps unique. It is ominous. I am aware of the closing of departments at the ANU, and elsewhere; the mass sackings at Monash in the past several years and the isolation of Julius Stone at Sydney University Law School. But the infaming of staff at Macquarie has an added derogatory dimension which is missing in such cases. This is unlikely to be the last such incident. Australian Universities are increasingly under the financial gun; there is a lot at stake.
University managers today are imbued with economic rationalism and convinced of the efficacy of ‘slash and burn’ tactics. In addition, increasingly isolated from the grassroots and surrounded by people expected to toe the line, and rewarded for doing so, the new University administrators are essentially corporate managers without much concern for academic traditions. They will have great incentive and power to treat staff with much the same delicacy as Patricks did the wharfies.
Some months ago a prominent student activist sized up the situation as it unfolded: ‘It is a case of the University selling out its educational philosophy to the baseness of financial considerations. It is not an innovative thing to close down an increasingly well regarded Law School, and reduce it to a black letter sausage factory’ (Arena, September 1998).
It seems likely this is the end of a great experiment in critical legal education.
At Macquarie we have a new McCarthyism based on the almost biblical authority of Economic Rationalism. At Macquarie the Executive has been determined to shape a new law structure and programs. In the interest of a particular structure of academic freedom — the Eight have been denied theirs. As Frug points out, that is the way it was done (and justified) in 1950s USA.[6] Then it was a threat from outside, today the threat is from inside — those committed to retaining traditional academic values and engaging in arguments about the discipline.
Macquarie is facing financial constraints. Pressure on the University to bring in private money is increasing; the University is struggling to compete with the traditional universities while trying to keep ahead of a number of other regional rivals. It is finding it tough going. From the point of view of the Executive the task has been made more daunting by the insistence of the NTEU — and some members of DOLI, on holding them to account. More worrying for the Executive, perhaps, has been the militancy of the law students in opposing developments favoured by the Executive, ranging from the merger with Business Law (which they overwhelmingly opposed), to the link up with a major hotel chain on campus. Not surprisingly, the students were labelled ‘dupes’ of academic staff, especially those of the Eight with whom they allied. This tactic is typical of McCarthyism.
The Eight have clearly been infamed: labelled academic criminals and deprived of their status and rights as members of the Law Division. They have been made infamous, stigmatised and exiled. Infamed, the Eight had no claim to remain in the Law Division. Infamed, they ‘had no God given right to exist’ as the Vice Chancellor told them at a November 1998 School meeting.
Ironically, the apartheid like scheme to sort out the Law School by infamising the Eight has failed to eliminate the ‘incorrigibles’, while the redundancy packages offered have attracted 13 applicants (out of 29 staff), far greater than the six sought by the University. Sadly, a number of the best and brightest — including three of the youngest — are leaving.
Inevitably the Division of Law will lose post-graduate students who chose to come to Macquarie to study; one has already taken his Australian government stipend elsewhere because his supervisor has left in disgust. And it is reported there has been a ‘flood’ of applications from Macquarie undergraduates for transfer to at least one other Law School. Financially the exercise has been expensive: by the end of the year the Law Division will be a million dollars in debt. A big price to pay for an appalling exercise in academic management.
It is, no doubt assumed, by the Executive and their Law Division supporters, that the new Law Division will be able to pursue the (post graduate) student dollar with renewed vigour and unprecedented success. There is considerable doubt as to the validity of that particular strategy given the small staff numbers in a discipline historically starved of funds from the University budget, and by the Sydney market domination of other institutions with greater experience and resources. One of the most attractive programs coming on line will now be abandoned as the co-convenor had no desire to remain in such poisoned circumstances. Ironically, one of the two successful post-graduate programs is run by a member of DOLI.
How well a ‘cleansed’ Division of Law will meet the challenges facing it remains to be seen. It is certainly not now unified and tension free. Indeed, one willing and very able senior lecturer who was willing to do the job of Divisional Head was rejected. Presumably he was not trusted to make conditions ‘tolerable’; the ‘personal is indeed political’ at Macquarie. Others have been assigned to Departments where they have no wish to be or have no academic interest in common with other members.
The loss of the baker’s dozen of staff with a wealth of accumulated knowledge and experience, including ironically, several of those who most complained that the Eight made life intolerable, suggests at least the Division will be struggling simply to keep a viable undergraduate program ticking over. Quality will clearly suffer as staff–student rates soar.
As Tacitus commented — where they make a desert, they call it peace!
References
[1] Martin, B. et al. (eds),
Intellectual Suppression: Australian Case Studies and Responses, Angus &
Robertson, 1986.
[2] In this
article the description of events and the comments made are based on documents
circulated within the University by various parties and on press reports
appearing in the Australian, Sydney Morning Herald, Campus
Review, Arena, Daily Telegraph, and Northern District
Times. If anyone wants a list of these references or copies of the material
relied on they can be obtained from the
author.
[3] For the record these
are the Eight: Gill Boehringer, Kathe Boehringer, Frank Carrigan, Drew Fraser,
John Gava, Patrick Kavanagh, Peter Kincaid, Stuart
Russell.
[4] See Martin, B. and
Manwell, C., ‘Publicising Suppression’ in Martin, above,
p.253.
[5] See Black’s Law
Dictionary, West Publishing Co., St Paul, 5th edn, 1979, p.699. In medieval
common law, infamy involved ‘Public disgrace or loss of reputation,
especially in consequence of criminal conviction ... originally (for) perjury,
but extended to any crime involving fraud or corruption. In time all felonies
came to be treated as infamous. Conviction for an infamous crime resulted in
disqualification from giving evidence’, from Walker, D. (ed.), Oxford
Companion to Law, OUP, 1980,
p.616.
[6] For a discussion of
McCarthyism & US Universities in the 50s see Schrecker, E, No Ivory
Tower, OUP, New York, 1986 and, for a review of Schrecker, see Frug, J.,
‘McCarthyism and Critical Legal Studies’ (1987) 22(2) Harv.
CR — CLLR 665.