Peter Ridd’s High Court case
On a chilly Canberra morning this week, the High Court was at capacity. Courtroom one, where five judges and several of Australia’s leading barristers had gathered, was full. Courtroom three, used for overflow seating, was at capacity as well. For a case centred on the proper construction of a university enterprise agreement – at most, a narrow employment law dispute – the level of attention was striking. But the protesters outside the court, joined by independent MP Bob Katter, betrayed the litigation’s broader significance.
Waiting in a lengthy security line to enter the brutalist building, Professor Peter Ridd, the bearded, bespectacled and softly-spoken appellant, seemed amused by the level of interest. “It is gratifying,” he said, “that other people do seem to think it is an important case.”
Ridd was fired by James Cook University in 2018, over persistent, scathing comments he made about the research of colleagues, which linked the Great Barrier Reef’s ill-health to climate change. He challenged his dismissal in the Federal Circuit Court and won a $1.2 million payout, before losing in a split decision by a three-judge Federal Court bench. In February, the High Court agreed to hear Ridd’s case.
“I’m a little bit nervous, but hopeful,” he told The Saturday Paper. “I’m already fired, already semi-retired, but in terms of what academic freedom means, [a loss] would be
a bit of a disaster.”
Ridd’s case has made him a cause célèbre among conservatives, who have used his dismissal as ammunition in their claim that Australian universities are undermining academic freedom. “The Peter Ridd case will be a watershed moment for the free speech crisis at Australian universities,” says Gideon Rozner, policy director at the Institute of Public Affairs (IPA). “Ridd is just one example of the way in which censorious cancel culture has hollowed out our universities.”
But the right-wing IPA is not the only one expressing concern. For the first time, the case raises before Australia’s highest court the level of protection afforded to academic freedom when pitted against employment codes of conduct.
“University codes of conduct now quite commonly incorporate standards that are just not appropriate for the university sector,” says Professor Adrienne Stone of the University of Melbourne, a world-leading expert on free speech and academic freedom. “If codes of conduct are allowed to qualify academic freedom, even when that freedom is protected in an enterprise agreement, I think that is a serious incursion.”
It may be unpopular to defend the free speech of climate deniers. And it is doubtful that the IPA’s “free speech crisis” is as widespread as it suggests – an independent 2019 review by former High Court chief justice Robert French found such claims were “not substantiated”. Nonetheless, Stone says, there remains a deeply important principle at stake in the Ridd case.
In a recent paper in the Sydney Law Review, Stone wrote that, “Ridd’s termination contravened critical and widely accepted principles of academic freedom. Beyond this particular case, it seems that, unless the decision is overturned on appeal, similar university codes of conduct are, or may become, significant threats to academic freedom.”
On Tuesday, Ridd’s court date became unexpectedly timely. Ahead of a meeting next month, UNESCO recommended the Great Barrier Reef be added to the list of World Heritage in Danger sites. The United Nations body urged Australia to accelerate action on climate change “at all possible levels”. The Morrison government was apoplectic – Environment Minister Sussan Ley said she would “strongly oppose” the recommendation, having been “stunned” at what she said was a “backflip on previous assurances”.
Despite extensive scientific evidence that the reef is endangered by climate change, Ridd – and the Morrison government – insist otherwise. “Unfortunately, that UNESCO decision is based on science that is not particularly trustworthy,” Ridd said on Wednesday. “In fact, the reef is in extremely good shape, despite what is often heard.”
This is not the consensus of the wider scientific community. In fact, they argue the opposite is true: the reef is imperilled and the key factor is climate change. It is this divergence that precipitated Ridd’s High Court case. In 2015, the physicist and former head of the Marine Geophysics Laboratory at James Cook University began to publicly criticise the work of colleagues at the university’s ARC Centre of Excellence for Coral Reef Studies. In an email to a News Corp journalist, Ridd said the centre and the Great Barrier Reef Marine Park Authority, a government agency, should “check their facts before they spin their story”. Appearing on Sky News alongside Alan Jones and Peta Credlin, Ridd said “we can no longer trust the scientific organisations”. He disparaged his colleagues’ credibility and suggested they were not objective because they were “emotionally attached” to the reef.
These remarks sparked a disciplinary process at James Cook University. Ridd was directed to keep quiet about the investigation and not do anything that “trivialises, satirises or parodies the University taking disciplinary action”. He disobeyed these directives, publishing documents about the disciplinary process on his website and setting up a GoFundMe campaign to support his battle with the university. In April 2018, the university found that 17 allegations of misconduct against Ridd were sustained.
The following month he was fired. More than three years later, the dispute has finally reached the High Court.
With Ridd and his supporters looking on, barrister Stuart Wood, QC, rose to his feet to make the case for academic freedom this week. “Intellectual freedom is an ancient principle foundational to a university,” he said. “The freedom was significant to the makers of the enterprise agreement … The [Federal Court] was wrong to put history and purpose to one side.”
Wood was met with a barrage of questions from a seemingly sceptical five-judge bench. But when it came time for the university’s counsel, Bret Walker, SC, to put his case just before lunch, the High Court was similarly persistent with its questioning. The judges gave nothing away.
The Ridd case highlights the extent to which ordinary workplace practices have pervaded the ivory tower. The behavioural obligations in James Cook University’s code of conduct are commonplace across private and public sector workplaces. The confidentiality requirements imposed during the university’s investigation of Ridd’s suspected misconduct were hardly atypical. Yet the underlying question confronting the High Court in the Ridd case is whether such managerial workplace regulation can peacefully co-exist with the academic freedom that universities profess to hold dear.
“Universities are a work environment principally directed to the advancement of knowledge in the public interest,” Stone says. “That requires high levels of intellectual freedom and independence from university control. In particular, it means that levels of criticism can and should be much stronger in a university in relation to teaching and research.”
Why should academics have stronger workplace rights than others? “There are a lot of things in a university that occur within the course of ordinary employment,” Stone says. “Absolutely ordinary employment law can apply in those contexts. But if you are talking about academics doing their research, talking about their research, communicating their research to the public – it is in that realm that very high levels of independence are required. That includes a tolerance for a level of criticism that you might not see in other workplaces.”
In courtroom one, Wood and Walker each accepted that Ridd had a right to academic freedom. But they disagreed over how far that right extended, particularly when it came to criticising colleagues. Wood quoted the trial judge, Salvatore Vasta, who held that “it may not always be possible to act [collegially] when diametrically opposed views clash in the search for truth”. But when Justice James Edelman asked if the code of conduct’s vague wording might “have a chilling effect on the pursuit of critical and open inquiry”, Walker hit back. “One person’s ‘chilling’ may be another person’s ‘appropriate restraint’,” he submitted.
The High Court’s decision will be delivered in the coming months. A judgement in favour of the university might prompt the Coalition to continue its culture war on campuses. Education Minister Alan Tudge recently warned universities that if they do not sign up to a model free speech code, he would consider legislating one. (Tudge was approached for comment on the Ridd case but did not respond before deadline.)
There is some irony in the fact that such a significant case, with such considerable implications and so many spectators, will ultimately be resolved on narrow interpretative grounds. Judge Vasta observed in his initial judgement that “this trial was purely and simply about the proper construction of a clause in an enterprise agreement”. But how the High Court interprets that clause will reverberate across the higher education sector.
“It’s not often that questions of academic freedom have reached the courts,” Stone says. “Which makes this highly significant. I am reassured at least by the fact that the High Court has taken the case. That suggests to me that there is a recognition that this is a really important question here. It is a really important question for the future of research in Australian universities and the future, really, of having an open society.”
This article was first published in the print edition of The Saturday Paper on Jun 26, 2021 as "Ridd of him".
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