One quote Hare had got right was my paper’s conclusion: For funding advocates, Education at a Glance has been a cherry-picker’s picnic … the more deeply we probe to tell apples from oranges, the more fruit salad we find ... Despite many claims of a serious funding problem for Australian universities based on international comparisons, the evidence for this is not as strong as it seems ‘at a glance’.

To be clear on one thing, gentle reader: my paper wasn’t rocket science. The rough reckonings in its charts and tables showed how, in a post-GFC world, it made no sense to compare spending only as a share of GDP. By 2012 the OECD was highlighting Australia’s “resilience” to the 2008 financial crisis, and its long-term trend as an “Iron Man” of economic growth. Yet down here in Oz we would peer through that prism each year, to say we still sat at the bottom of the OECD.

If my paper’s math was simple, its aftermath was not. Not for lack of logic or evidence; but lack of political calculus. To some in our sector’s upper ranks, casting doubt on how low the OECD ranked our spending was rank heresy. And any hint that such claims were biased, utter blasphemy. “Jemand mußte Josef K. verleumdet haben, denn ohne daß er etwas Böses getan hätte, wurde er eines Morgens verhaftet.”

The T&F advice (Chapter 7) had been calm enough in tone, but alarming in subtext: given the potential for allegation of defamation … a Corrigendum is not sufficient to eliminate the risk of litigation … Have a lovely Easter break all! Josh

So now I was learning the hard way that allergic reactions like these were not to be sneezed at. Maybe I’d missed some kind of Memo from Machiavelli on how to disagree with professors. Or maybe I just hadn’t read Clueless in Academe closely enough. That word defamation had led me back to the publishing agreement I’d signed with the Journal in February:

you warrant that the Article contains no statement that is abusive, defamatory, libelous, obscene, fraudulent, nor in any way infringes the rights of others, nor is in any other way unlawful or in violation of applicable laws … You undertake that you will keep us and our affiliates indemnified in full against all loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by us as a result of your breach of the warranties given in this agreement

I recalled the emails I’d seen a fortnight earlier (Chapter 5): The heading ‘beautiful lies’ is too close to abuse to pass without comment …The implication in your published paper that there has been some kind of academic fraud … It is likely that your own reputation will be affected at least as much as the reputations of those you have sought to denigrate...

In my reply to Josh, I’d rejected his advice to retract as a matter of urgency, given the coverage in the media. I didn’t think my paper had misrepresented anyone: if some kind of defamation action did arise, it seems to me some ready defences are available

That was on Good Friday. By Easter Sunday we’d packed for our family holiday. Our plan was to load our three kids into the car, drive it aboard the Spirit of Tasmania, then spend the day crossing to Devonport. (Crossing Bass Strait could be rough: later that year heavy seas left cars smashed below deck. But in April we’d cross with less Sturm und Drang than I’d been weathering at work.) Over the next week, we’d drive south to Hobart via Ross, visit the penal settlement ruins of Port Arthur, head back north via Queenstown and Cradle Mountain, then be ferried back to Melbourne.

Map image: Melbourne image: Cradle Mountain image: Bjorn Christian Torrissen  

Back when Josh had first started flagging legal risks, I’d looked up Australian defamation law. It seemed clear enough: defamation is to spread bad reports about someone which could do them harm … which spoils their good reputation, which makes people want to avoid them or which hurts them in their work or their profession…

By this stage, gentle reader, I felt I could tick a few boxes of my own here. I’d spent hours of time and buckets of energy on this, on various fronts. My wife had watched my slow, unsteady slide into distraction, stress and sleeplessness. Over Easter we found some time to talk it over, free of our day-to-day juggling acts.

I’d been keeping our Institute Director in the loop on my exchanges within the Centre and with those at the Journal. But not on my back and forth with The Australian. On this I’d simply forwarded the draft reply I’d sent to Hare earlier that week (Chapter 8). And on this front, the signs already seemed clear that my reply would not be published.

From: Geoff Sharrock
Sent: Sunday, 27 March 2016 9:55 PM
To: Leo Goedegebuure

Leo, Talking this through with my wife (who happens to be a lawyer) I’ve decided to get some legal advice on The Australian’s reporting, its headlines in particular … “Funding claims rely on data ‘misuse'” … a very explicit misrepresentation, and an apparent direct quote … The fact that negative media reporting has been a consideration for the publisher’s legal advice on retraction illustrates the point … if the Australian won’t publish my response … your advice on how much support you are able to give, and in what form, would be appreciated

By the time Leo responded on Tuesday evening, we had further advice in from Josh. By then Josh had seen my draft reply to Hare, and my early follow-up notes to the complainant (Chapter 8).

From: Pitt, Josh
Sent: Tuesday, 29 March 2016 9:32 AM
To: Geoff Sharrock
Cc: Yardley, Mia; Ian Dobson; Leo Goedegebuure; Lazzari, Alexandra
Subject: RE: CJHE 1150231: Beautiful lies JHEPM online and print editions – legal advice

Dear Geoff, Thanks very much for the extra information provided. I will need to go back to Legal now with preferred revised approach, which as I understand is your preference to simply amend and then republish the article online with attached corrigendum i.e. without written confirmation from Marginson (as indeed seems highly unlikely given correspondence to date). It is important to point out that both LH Martin and the Association for Tertiary Education Management, as copyright owners in the Journal, will also both be liable if a defamation case is sought by Marginson. Please let me know if this is acceptable, and we will then liaise further at this end. Best wishes, Josh

As the day progressed, Josh had given me no more detail of the complaint (Chapter 7). Leo came back to me that evening.

From: Leo Goedegebuure
Sent: Tuesday, 29 March 2016 7:54 PM
To: Geoff Sharrock

Geoff, Hope you are enjoying Tassie … I’ve seen the discussion with Josh unfold … As far as I see it there has been no formal approach to the Journal from Simon, so for me that means that one is a non-issue … As discussed previously, I do not want to further give oxygen to this discussion as I think it is  counterproductive. I have no problem with your article. You send it to Julie who did something else with it than you expected. That can happen. It is obviously up to you to obtain legal advice as to her reporting. But ultimately that’s between you and her. My strong advice to you is to let this rest and enjoy the holiday with the family. Cheers, Leo

With Josh reaffirming both the legal risk and Leo’s own view that Marginson was highly unlikely to agree to anything, relaxing just then seemed a big ask. But at least someone at management level was declaring that they didn’t regard my critique as an extraordinary attack. On the other hand, if you’ve just been pilloried in the press, private support is one thing…

From: Geoff Sharrock
Sent: Tuesday, 29 March 2016 8:37 PM
To: Leo Goedegebuure

Thanks Leo … I appreciate your confirmation that you don’t have a problem with the article. Despite the criticisms I think it’s still defensible as it stands, but given some minor edits in train anyway, and a chance to address the concerns raised, I’d like to do that … On your final point, it now looks as if Julie will not publish my response. In that event, a non-response on my part to her misreading of my article can only appear as a tacit admission that her reporting of it was correct. Since Simon and others have now seen my response to the reporting, and had some further explanation as to what the paper claims and does not claim, I would appreciate it if I could post this response on the LH Martin website … Otherwise, despite your private support, it will not appear that there is any public support at all for my paper, or for me on this matter … On a happier note, the trip so far is good! Sunny in Hobart when we arrived here today. Cheers, Geoff

To this, Leo’s non-reply implied that as far as any public support went, I was still on my own. Later that evening I replied to Josh.

From: Geoff Sharrock
Sent: Tuesday, 29 March 2016 10:19 PM
To: Pitt, Josh
Cc: Yardley, Mia; Ian Dobson; Leo Goedegebuure; Lazzari, Alexandra
Subject: RE: CJHE 1150231: Beautiful lies JHEPM online and print editions – legal advice

Thanks Josh, for the clarification. For your legal people, a further item of evidence to add about how the paper was being read before the Australian article: Andrew Norton tweeted it on 4 March, with the line: ‘Geoff Sharrock exposes dubious OECD claims‘. That is an accurate take … To confirm my last advice, simply amending and republishing online is my preferred approach rather than a full retraction; and of course offering space for a right of reply if Simon remains concerned enough to attempt a refutation … The main edits relate to the title, which is not altered but explained in a footnote, and to the Implications section … (and also) the Abstract, since the Australian reporting gets the logic of this the wrong way around … Regards, Geoff

Then I spent the next couple of hours rechecking my Marginson quotes. The more I sifted the full range of reactions to my paper (Chapter 4), the more I saw the complaint as an over-reaction. And given the advice that the editor said there were no specific complaints made to him in writing about the article I took the publisher’s alarm to be due mainly to media coverage.

It had been three weeks since this saga began. Checking online, I saw that my paper had been removed from the Journal website already. Strewth, my inner farmboy fumed. Guess I was guilty of Truth with a capital S. Or is it Reason with a capital T? That night I decided that if the Journal wasn’t ready to support its author or editor, and if The Australian wouldn’t publish my reply, and if I couldn’t post it on the Institute website either, it might be time to stop being so bloody reasonable. The next day, on a break from our sightseeing, I sent a note to the Executive Director of the University’s Legal and Risk group. I’d met Kylie Gould the previous year on a project I’d worked on.

From: Geoff Sharrock
Sent: Wednesday, 30 March 2016 4:11 PM
To: Kylie Gould
Subject: legal query about misreporting of journal article in the media

Dear Kylie, I’m not sure if your group offers advice to University staff on this kind of problem. In brief, after publishing a journal article recently I forwarded it to a higher education journalist to see if they wanted to report on it. It turns out that they did, but not in the way I was expecting. The article (which is quite technical in parts) was misinterpreted and then reported as an ‘extraordinary attack’ on various university sector commentators … More specifically, the report presented my article as an allegation that scholars such as Simon Marginson ‘misused’ OECD data about university funding in order to mislead. Needless to say, I’ve had quite a bit of email about this … I have offered explanations to Marginson and others in the loop on this, and have made undertakings to clarify aspects of the article before it goes from online to print to address their concerns. I have also provided an 800 word response to the reporting. This clarifies what the article does and does not claim, and explains in simple terms what the article is about. But so far the journalist has declined to publish it, despite some quite detailed explanation … My concern of course is that the media report has been damaging of my own reputation as well as of my relations with other parties; and that it has framed the way people read the article itself. Is there anyone in your group that I could brief about this and discuss it to get some preliminary advice? With thanks, Dr Geoff Sharrock

A week later, back in Melbourne, I met Gould in her office. She confirmed that her group gave advice to the University, but not to staff. She also said that in the circumstances, I might also face an academic misconduct complaint, within the University. At this, I sat back in my chair.

Talk about your slings and arrows. Should’ve just stayed in that penal colony down in Tasmania. I made a mental note to add this to my list of potential headaches. As for the media report, Gould went on, this presented two legal issues. One was possible defamation, for spreading a false report and refusing to correct it; the other, possible damage to my “moral rights” as the author of a piece of work, under copyright law. She had some good contacts in Melbourne’s law firms and gave me some names. She suggested I buy two hours of a defamation lawyer’s time for some initial, pragmatic advice. This would limit my costs and help me decide whether and how to proceed.

This seemed like good, sane advice. At home I relayed it to my wife. While not a defamation lawyer, she knew other Melbourne lawyers, including one of the names I’d been given. If it made sense to compel The Australian to do the right thing, we decided, she’d call them first for an informal chat. Then I’d follow up with a detailed brief on what had happened, and see what they advised.

On the other hand, in our household we were both busy enough already, with work and family demands. Hare’s reporting hadn’t triggered any public response in The Australian itself – or any other complaints to my University colleagues or Centre management, that I’d heard about.

By now it was early April. As far as I could see, the substance of the Journal complaint had been addressed openly with the professor, as those in the loop at the University could see (Chapter 8). If, in the coming weeks, it was resolved, I could probably just let the media matter drop. Then we could get back to our real work, and get on with our lives.

But if not, gentle reader – well, by then I’d put up with enough shame and scorn and outrage. Soon it might be time to take arms against my sea of troubles. And by opposing … extend them?

Rough crossing of Bass Strait, April 2021

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