‘It’s taken six months and $100,000 in legal costs to clear my name’

Her research into late-term abortions provoked controversy.  It provoked complaints  even though it was perfectly scholarly.  Her  university’s response to the complaints was a series of oppressive “investigations” which eventually attempted to penalize her

In 1964, Robert Menzies gave a speech at the University of NSW defending academic freedom and the pursuit of truth in all areas of human endeavour as a fundamental principle for Australian universities.

“It is of the most vital importance for human progress in all fields of knowledge that the highest encouragement should be given to untrammelled research, to the vigorous pursuit of truth, however unorthodox it may seem,” the prime minister said.

Law professor Joanna Howe is claiming a modern-day victory for this ideal after securing a breakthrough in the Fair Work Commission case she brought against her employer, the University of Adelaide.

Howe argues she has secured a win for academic freedom at a key moment for Australian universities given a new age of political polarisation, campus cancel culture and an elevated focus on the protection of students from content they may find offensive.

In June, she lodged a stop bullying application against the university with the industrial umpire and sought the removal of the corrective actions imposed on her. But this was just the straw that broke the camel’s back.

Across a period of 4½ years, Howe endured six investigations conducted by the university as a result of complaints made against her research into the politically contentious topic of abortion.

While Howe was cleared by all of the investigations, the sixth to be conducted by the university required her to complete a research integrity course within 30 days. The aim was to provide further education on how not to do biased research.

This corrective action was imposed on Howe despite the investigation dismissing allegations of plagiarism and misrepresentation of facts in a submission she made to a parliamentary inquiry in South Australia. The investigation found there was no breach of the Australian Code for the Responsible Conduct of Research. Howe fought against the requirement to complete the online re-education course, but the battle took a heavy personal and financial took.

After first being notified of the complaint against her on January 24, Howe spent more than half a year dealing with and responding to the investigation process. She racked up legal costs of nearly $100,000 in her bid to resolve the dispute.

“I appealed internally on four occasions and was never given any reason for why my appeals were rejected or corrective actions were imposed,” she tells Inquirer. “My appeals raised serious concerns with the university’s failure to follow its own procedures, including the requirement to dismiss complaints that were made vexatiously or in bad faith. Every time my appeals fell on deaf ears.”

An FWC conciliation process now has produced an agreed statement between both parties making clear that the university accepted commissioner Christopher Platt’s recommendation “not to require Professor Howe to comply with the corrective actions and that no further action will be taken in this matter”.

“The parties have agreed on a process regarding the investigation of complaints moving forward,” the statement says.

“The University of Adelaide supports academic freedom, as reflected in its Enterprise Agreement 2023–2025 and its Freedom of Speech and Academic Freedom Policy.”

Following the resolution of the dispute, Howe has embarked on a fresh campaign to have a new process for the dismissal of bad-faith complaints adopted more broadly across the nation’s universities. She sees the reform as a key instrument for the defence of academic freedom.

In a letter sent to Universities Australia chairman David Lloyd on Friday, Howe says the “ability to research and speak out in areas that are unpopular or controversial benefits the whole community in our pursuit of truth”.

“While I accept that complaints are par for the course if one is researching in an area of controversy, what I do not accept is the choice by universities to investigate complaints that are made vexatiously or in bad faith,” she says.

“This choice, as I know all too well, places researchers under an unfair and unreasonable spotlight and distracts them from pursuing their research.”

Howe’s research has subjected her not only to criticism of her work but also personal attack across several years – including the release by activists of her place of work and family.

Since 2017, Howe has researched abortion in Australia including its different methods, the regulation and incidence of sex-selective abortion, the regulation and incidence of abortion after viability – known as late-term abortion – and the regulation and incidence of babies born alive after an abortion.

In 2021, she began research on the regulation of prostitution, including an examination of the merits of full decriminalisation of prostitution versus a partial decriminalisation model.

Howe’s primary field of research, however, has been at the intersection of labour law and migration law and in this field she is regarded as one of the nation’s leading experts. She holds a doctorate of philosophy in law from the University of Oxford, where she studied as a Rhodes scholar, and is the author and co-editor of three books.

In 2022 she was hand-picked by the Labor government to help lead the migration review headed by former top public servant Martin Parkinson that was delivered in March last year.

In her letter to Lloyd, Howe has made the following proposal: “I am requesting that Universities Australia work with the sector to introduce a new, specific requirement to mandatorily dismiss complaints which are made vexatiously or in bad faith about the research or conduct of academics.

“This simple yet significant reform would help free scholars who research in areas of controversy from the threat of being under constant scrutiny and investigation.”

Howe tells Inquirer the outcome at the conciliation in the FWC was “a significant victory for academic freedom but it’s a fight I never should have had to take on”.

“No one should have to go through what I have been through just to fight for the freedom to research and speak,” she says. “It should not have taken me six months … and nearly $100,000 in legal costs to clear my name.

“This outcome at conciliation confirms I was right to not submit to the university’s attempt at re-education by forcing me to do an anti-bias course.”

The complaints

Between November 25, 2019, and May 2 this year, the University of Adelaide undertook six investigations into Howe’s scholarship because of complaints – five of which were made within an 18-month period from July 2022. The wave of complaints from July 2022 came after Howe started to promote her research online, including on her website and on social media, to make it more accessible to a general audience.

Howe says this exposed her to harassment, verbal abuse and repeated threats to her employment. She was targeted in particular by individuals and activists from pro-sex work and pro-abortion organisations.

This resulted in several complaints from TikTok activists who accused Howe of misrepresenting facts for saying that abortion was legal in Australia up to birth and that the procedure was not limited only to life-threatening situations or where there was the prospect of serious congenital abnormality.

Howe has researched, collected and promoted data on the incidence of late-term abortions including those conducted for psychosocial reasons or in ins­tances where healthy babies had medical abnormalities that could have been medically or surgically corrected.

“Having been subject to five investigations in two years because of the controversial nature of my research has substantially impacted and undermined my academic freedom to research and advocate on abortion from a critical perspective,” she tells Inquirer.

The sixth complaint

The sixth investigation related to a submission Howe made to a parliamentary inquiry in South Australia. The complaint was made by a TikTok and Instagram activist, whom The Australian has not named, over allegations of plagiarism and misrepresentation in Howe’s submission.

Howe has strongly criticised the university’s handling of this complaint. She argues it made several errors that denied her procedural fairness.

First, while being notified in a January 24 letter from the university that a sixth investigation was being conducted into her, the letter did not identify the specific allegations being made against Howe’s research.

Howe was unable to provide responses to the allegations until February 14, after she had inquired a second time to discover their substance.

Second, the university’s preliminary assessment concluded in March that there was no breach of the Australian Code of Conduct for Responsible Research. But it did find there was a “minor departure from accepted academic practice in terms of appropriate citation and representation of primary sources”.

The assessment officer did not recommend any corrective action but, despite this, the university’s formal determination was for Howe to complete an online research integrity course within 30 days – a requirement imposed on her on May 2.

Third, the individual who made the complaint against Howe was notified by the University of Adelaide of its determination that the “complaint be resolved at the local level with corrective actions”.

The university neglected to mention that the allegations of plagiarism and misrepresentation had not been substantiated or that Howe was not in breach of the Code for the Responsible Conduct of Research.

“The university’s correspondence with the TikTok activist who made the original complaint in the fifth investigation was appalling,” Howe tells Inquirer. “It did not state that the investigation found I had not breached the Australian Code of Conduct for Responsible Research but stated that corrective actions had been imposed, which led to the complainant publicly releasing this letter.

“This led to a torrent of online abuse as pro-abortion trolls and activists harassed me and erroneously claimed that I had been found guilty of misconduct and that the university had ordered me to unpublish my research report.

“Neither had happened and yet the university refused to clear my name.”

Fourth, Howe appealed on four occasions within the university against its handling of the matter.

“My appeals raised serious concerns with the university’s failure to follow its own procedures, including the requirement to dismiss complaints that were made vexatiously or in bad faith,” she says.

“I raised concerns around a serious conflict of interest with respect to the responsible designated officer for my case.”

Howe has argued that the university failed to comply with its policy on academic freedom and that pro-abortion scholarship by others at the university was not held to the same standard. She says pro-abortion scholars also had diverted from best practice when citing primary sources on several occasions but had faced no consequences.

A new pathway

In a bid to ensure that important research at Australian universities is not stymied because of a stream of bad-faith complaints targeting individual academics, Howe is now urging Universities Australia to implement broader reforms to uphold academic freedom.

In her letter to Lloyd, obtained by Inquirer, Howe argues that universities should apply a common standard allowing them to “automatically” dismiss bad-faith or vexatious complaints.

This would include adopting common definitions of vexatious and bad faith.

Howe suggests definitions for both and says universities should bear several factors in mind when assessing whether the complaints meet those definitions.

She says universities should consider the reality of “differing views in relation to controversial research topics” and “whether the complaint has been brought with an ulterior motive and not in good faith by reason of these different views”.

In addition, universities should consider the need to uphold the “right of scholars to academic freedom, freedom of speech and health and safety”.

However, she also says the “designation of a complaint as being made vexatiously or in bad faith” should not be taken at the discretion of university management.

Howe says there is a growing urgency to the reform blueprint.

“This requirement to automatically dismiss complaints that are found to be vexatious or in bad faith is necessary given the central importance of academic freedom, recognised by the High Court in Peter Ridd v James Cook University and in the French Review of Freedom of Speech in Australian Higher Education Providers,” Howe says.

“I urge Universities Australia to consider this modest proposal to ensure better protection of academ­ic freedom and free speech across the higher education sector.”

https://www.theaustralian.com.au/inquirer/its-taken-six-months-and-100000-in-legal-costs-to-clear-my-name/news-story/7bde4e2daa5c87b91a6fd8704eca2b1b

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