QED

It’s Official: Dissident Academics Are Fair Game

Prime Minister Scott Morrison once said he did not care about attacks on free speech, because free speech “does not create a single job”.  Well, Prime Minister, it is now clear that one can actually lose one’s job for daring to express an opinion that challenges the dogmatic beliefs of the academic elites and university administrators.

Academic Peter Ridd has lost his High Court appeal against James Cook University (‘JCU’), after he was sacked for breaches of the university’s code of conduct relating to public commentary about the Great Barrier Reef which the university said denigrated a colleague. He was at first awarded $1.2 million compensation by the federal circuit court but this was overturned by the federal court of appeal.

Wednesday’s decision is the conclusion of more than two and half years of litigation. In a unanimous decision the High Court decided that Dr Ridd’s right to intellectual freedom was not protected under the terms of his employment agreement. On May 2, 2018, Dr Ridd was sacked by JCU. His first alleged misconduct was calling out a fellow academic for claiming that healthy inshore coral reefs were dead due to climate change and deteriorating water quality.[1] Dr Ridd had explained why so much of what is said about the Great Barrier Reef, including by scientists at the Australian Institute of Marine Science (“AIMS”), cannot be trusted.

In April 2019, Dr Ridd won his initial case in the Federal Circuit Court. Judge Salvatore Vasta ordered that the 17 findings made by JCU (including two speech directions, five confidentiality directions, and the final censure given to him) were unlawful. This was a temporary victory for academic freedom of speech. JCU then appealed that decision to the Federal Court of Appeals.

On July 22, 2020, JCU’s appeal was upheld on grounds that Dr Ridd had been “un-collegial” by stating JCU/AIMS’s “systematic deficiencies in their quality assurance processes”. There was no attempt in the judgment to define academic freedom, which is what some would expect courts to do.

No less important, the decision ignored what federal legislation says about universities having the responsibility to protect academic freedom and free intellectual inquiry. Australian universities are created by legislation. They are built on public property and funded by government grants and state-subsidised loans. These universities are legally bound to meet a range of objective criteria in exchange for federal funding. This is a legislative mandate derived from the Higher Education Support Act 2003, which explicitly requires that every university that receives public funding must “have a policy that upholds free intellectual inquiry in relation to learning, teaching and research”. [2]  Such provision was was introduced into legislation by the Higher Education Support Amendment (Demand Driven Funding System and Other Measures) Bill 2011 (Cth).

Also requiring academic freedom of expression is the Higher Education Standards (HES) Framework 2015. The HES Framework explicitly mentions that every university in Australia must uphold “free intellectual inquiry”. “The higher education provider must have a clearly articulated higher education purpose that includes a commitment to and support for free intellectual inquiry in its academic endeavours”, HES Framework adds.[3]

Australian universities are also legally obliged to comply with federal regulation derived from the Tertiary Education Quality Standards Agency (TEQSA), the nation’s independent national quality assurance and regulatory agency for higher education. In its 2017 ‘Diversity and Equity Guidance Note’, TEQSA stated: “Measures taken to accommodate diversity should not contravene the pursuit of intellectual inquiry, and more generally, freedom of expression”.[4]

None of these protections of the law have assisted Dr Ridd, who was summarily dismissed by his employer on charges of bringing JCU into “disrepute” — a somewhat ironic position when one considers that, in relentlessly pursuing him, it is JCU that has arguably brought itself into disrepute.

Today’s court case did not hinge on the veracity of Dr Ridd’s statements. Rather, the judgement was confined to whether he had broken the conditions of his employment contract. The court’s judgment summary says Dr Ridd “submitted that all of his conduct was an exercise of the intellectual freedom … and could not be a serious breach of the Code of Conduct”. But the Court unanimously dismissed the appeal, saying “the intellectual freedom protected by cl 14 of the Enterprise Agreement was not a general freedom of speech”. That being so, when asked why he ended up losing the case, Dr Ridd answered: “We lost, in my opinion, because JCU’s work contract, under which I was employed, effectively kills academic freedom of speech”.[5]

In a statement, however, JCU claimed that the court’s decision showed Dr Ridd’s termination of employment had “nothing to do with academic freedom”.  But Queensland’s NTEU Secretary, Michael McNally, dares to disagree. According to him, Dr Ridd was “rightly exercising his academic freedom” and that decision “demonstrated why it was important that academic freedom clauses were protected during enterprising bargaining”.[6]

Writing for The Epoch Times, Gabriël A. Moens, an emeritus professor of law at the University of Queensland, comments that

the Court rejected the proposition that the quality of the research work undertaken in a university may be publicly criticised, even though the research is funded by the public purse and the state of the Great Barrier Reef is an issue of concern to all Australians.[7]

The court ruling was also heavily criticised by Sky News commentator Fred Pawle. As a result of this ruling, according to him, “any researcher who tries to blow the whistle on such allegations in our publicly funded research institutions – and there is enormous reason to believe that such misbehaviour exists – has been warned: don’t even think about it. You will lose your job for doing so”.[8]

In similar vein, John Roskam, executive director of the Institute of Public Affairs (IPA), has expressed his “dismay” at the judgment:

This decision proves Australia’s universities are in crisis and a culture of censorship is overtaking Australia. Our institutions increasingly want to control what Australians are allowed to say and what they can read and hear.

In my opinion, there is little doubt the majority of these university administrators are failing to properly exercise their legal (and constitutional) obligation to protect freedom of speech on our campuses. As an academic myself, I have noted with great despair that the suppression of free speech has become a very real thing in many of our universities, and that the silencing of minority opinion has been quite systematic.

According to Greg Craven, a law professor who was Vice-Chancellor of the Australian Catholic University, there is indeed a strong sentiment in the community that “universities are more interested in their public image, and not upsetting their Departments of Woke, then protecting fundamental academic freedom”.[9]  After reminding us that at the heart of academic freedom is “the right to take a view with which your colleagues disagree”, Craven comments that, especially in the fields of law, history and political or environmental science, “it can be very dangerous to be a dissenter and work in an Australian university”.[10] 

The High Court had the duty to uphold the existing legislative protections to academic freedom in accordance with the statutory standards and federal regulations. Unfortunately, however, the Court has failed in its important task and now the right to academic freedom is effectively dead and buried in this country.

Augusto Zimmermann LLB, LLM, PhD, CIArb, DipEd, is Professor and Head of Law at Sheridan Institute of Higher Education in Perth, WA. From 2012 to 2017, he served as a Law Reform Commissioner in Western Australia. Professor Zimmermann is also formerly tenured legal academic and Research Dean at Murdoch University, School of Law.

 

[1] Jennifer Marohasy, ‘University Appeal Upheld, Peter Ridd Loses – We All Lose’, Jennifer Marohasy Blogg, July 22, 2020, at  https://jennifermarohasy.com/2020/07/university-appeal-upheld-peter-ridd-loses-we-all-lose/

[2] This section was introduced into legislation by the Higher Education Support Amendment (Demand Driven Funding System and Other Measures) Bill 2011 (Cth); see: Higher Education Support Act 2003 (Cth).

[3] Commonwealth of Australia, Higher Education Standards Framework (Threshold Standards) 2015, October 7, 2015.

[4] Matthew, Lesh, ‘Time For A Freedom Fight Back In Our Universities’, The Institute of Public Affairs, Melbourne, January 22, 2018, p 6. See also: Matthew Lesh, ‘University Regulator Backs Down on Free Intellectual Inquiry Attack’, FreedomWatch, Institute of Public Affairs, Melbourne/Vic, May 31, 2017.

[5] Elizabeth Byrne and Chloe Chomicki, ‘Controversial Queensland Scientist Peter Ridd Has Lost a High Court Battle Against JCU Dismissal’, 13 October 2021, at https://www.abc.net.au/news/2021-10-13/qld-controversial-queensland-academic-court-battle-jcu/100534402

[6] Ibid.

[7] Gabriël Moens, ‘Academic Freedom Relegated to the Dustbin of History’, The Epoch Times, 13 October 2021, at https://www.theepochtimes.com/academic-freedom-relegated-to-the-dustbin-of-history_4046132.html

[8] Fred Pawle, ‘High Court’s Ruling Against Former James Cook University Professor Peter Ridd is an Assault on Freedom of Expression’, Sky News, 13 October 2021, at https://www.skynews.com.au/opinion/high-courts-ruling-against-former-james-cook-university-professor-peter-ridd-is-an-assault-on-freedom-of-expression/news-story/7dbb8ce846400da754c251fa846c438b

[9] Greg Craven, ‘Free Speech A Character Test for Vice-Chancellors’, The Australian, July 27, 2020, at https://www.theaustralian.com.au/commentary/free-speech-a-character-test-for-vicechancellors/news-story/729c926d0cb7d9bb5d26adb7b2b2ab28

[10] Ibid.

11 comments
  • Adam J

    The High Court has always been a bit of a loose canon. Firing in whichever direction it wants, no one can predict it, and so no-one should rely on it to protect even the most basic freedoms. It should concern everyone that there is no clear direction coming from it. Some might say that it is good for a court to be so unpredictable, but I don’t agree. The High Court seems to think that on some days you have fundamental rights and on some days you just don’t.

    On top of all this is the adversarial system in which cases necessarily include elements of strategy and tactics. It seems from the summary that some of those manoeuvres may not have been the right choice.

    Professor Zimmerman seems to favour an inference of rights, looking at the purpose of legislation and its nature to discover what rights may be affirmed by it. But it’s better that we start from the opposite view: that we have academic freedom first of all, and only then asking what law or agreement has restricted it. Of course, the High Court of Australia consistently interprets or infers rights in the narrowest sense possible, so it’s not surprising that they try to draw a distinction between intellectual freedom and freedom of speech.

  • Adam J

    For everyone’s benefit, this is the PDF link to the whole judgement. Peter Ridd was given two censures. The High Court ruled that the First Censure should not have been given; discussion of the Final Censure begins on page 25.

    https://eresources.hcourt.gov.au/downloadPdf/2021/HCA/32

    === Extracts follow: ===
    The “Final Censure” of Dr Ridd by JCU was the result of a number of
    comments by Dr Ridd in different fora. The first of these was made on
    1 August 2017 in an interview with Mr Alan Jones and Ms Peta Credlin on the
    television show “Jones and Co”, which was broadcast on Sky News (“the Sky
    Interview”).

    Earlier in the Sky Interview he had said that:
    “the basic problem is that we can no longer trust the scientific organisations
    like the Australian Institute of Marine Science even things like the ARC
    Centre of Excellence for Coral Reef Studies. A lot of this stuff is coming
    out, the science is coming not properly checked, tested or replicated and
    this is a great shame because we really need to be able to trust our scientific
    institutions. And the fact is, I do not think we can anymore.
    I think that most of the scientists who are pushing out this stuff, they
    genuinely believe that there are problems with the reef. I just don’t think
    that they are very objective about the science they do. I think [they’re]
    emotionally attached to their subject, and …
    You know you can’t blame them, the reef is a beautiful thing.”

    One basis for the Final Censure, which relied upon the extracts above from
    the Sky Interview, was that Dr Ridd’s intellectual freedom did not justify the
    “criticism of key stakeholders of the University” in a manner which was not “in
    the collegial and academic spirit of the search for knowledge, understanding and
    truth” or “respectful and courteous”. Dr Ridd was also told that his conduct “had
    and has the capacity to damage the reputation of [the Australian Institute of Marine
    Science] and ARC Centre [of Excellence] and therefore the relationship of the
    University with these bodies and by association the reputation of the University”.

    …six findings concerned remarks in emails sent by Dr Ridd from his JCU
    email account to external recipients expressing his views that he had offended
    “powerful organisations” and “some sensitive but powerful and ruthless egos”, and
    that “our whole university system pretends to value free debate, but in fact it
    crushes it”. These were not expressions of opinion within an area of Dr Ridd’s
    academic competence. And Dr Ridd made no submissions that could have justified
    these remarks otherwise falling within the intellectual freedom protected by cl 14.

    On 28 August 2017, Dr Ridd replied to a group email, which had more than
    30 group members, in which a member of the group had attached an article from
    The Australian newspaper that mentioned that Dr Ridd was facing disciplinary
    proceedings and the member had asked “Is there anything we can do to help
    Peter?”. Dr Ridd responded, with comments that included, “Actually if anything a
    letter to my VC would be the most useful”.

    One of the curiosities of the manner in which Dr Ridd’s case was conducted
    was that he accepted that, subject to the intellectual freedom in cl 14, this comment
    involved serious misconduct, which must have been on the basis that the comment
    contravened Dr Ridd’s obligations of confidentiality under the Code of Conduct.

    === End extracts

  • STD

    Don’t be in any doubt, Professor Ridd absolutely did the right thing, by Australia and the Australian taxpayer- after all , t is they that are being defrauded by the educational sector.
    Perhaps there is a case the University has to answer in relation to academic fraud ,outside of their closed shop employment contracts or ‘enterprise ‘contractual agreements ( agree to disagree in this instance).
    Did the University or the relevant minister acknowledge and thank Professor Ridd for his honesty and integrity in relation to the truth of the matter in these proceedings.
    Sometimes the law is an ass when there is still corruption afoot.

  • Stephen Due

    What this demonstrates is that Progressive totalitarianism, which is the dominant ideology in the universities, can be enforced in part using employment contracts as a weapon against ‘dissent’.
    The larger picture is that the universities are one element of a more sinister cultural context. As the ‘pandemic’ has shown, Australians generally are willing to submit to rule by a self-appointed Elite in return for a steady supply of reassuring messages from the mainstream media.
    The real sin committed by Peter Ridd was nothing to do with an employment contract. His real sin was to enter the news cycle in such a way as to cause the media to emit unresolved alarm signals. The High Court is simply endorsing the view that the universities ought to sack academics who disturb the tranquil waters of public discourse by departing from the established ‘narrative’.
    The Great Barrier Reef is a handy metaphor in this regard. The dead, monochrome reef, represents JCU and the High Court. The living reef, with all its vibrant life and colourful diversity, represents science as envisioned by Dr. Ridd and his supporters.

  • pgang

    You guys are a bit late to the party on this. For about the past 50 years if you mentioned the word ‘creation’ at a university you’d been burned at the stake. It’s a bit late now for humanist crocodile tears, quite frankly.

  • Lewis P Buckingham

    It is ironic that it was only after the Administration of JCU acted unlawfully to censure Prof Ridd, did it force his hand to rally support.
    But for that support he would not have been able to adequately answer the unlawful charges made against him and at the same time raise the needed cash to mount his defence.
    Up until that point, the censures were over trivial matters and ‘unlooked for’ in the mouth of a University upholding scientific rigor.
    However Peter Ridd lost yet won.
    It is noteworthy that when asked by JCU for their costs to be awarded against Ridd, the High Court graciously declined.
    So we, good readers, were the payer of last resort for this travesty of governance.
    Now free of the JCU yolk, Peter Ridd has some more to say:
    ‘But the technicalities of the work contract about whether or not I could blow the whistle on JCU’s behaviour ultimately doomed me. The High Court deemed JCU’s confidentiality directive was legal. They could stop me talking about their disciplinary action. In addition, my comments about JCU’s poor behaviour were deemed to be outside my “field of competence” (which is a Physicist) so were not protected by academic freedom of speech.

    This meant, for example, I was not allowed to say “In my view our whole university system pretends to value free debate, but in fact it crushes it whenever the ‘wrong’ ideas are spoken. They are truly Orwellian in nature.” I wonder what area of expertise an academic would need to be allowed to make a comment like that. I would argue all academics should have a right to say this. I can picture George Orwell smiling, especially as JCU found this comment by trawling through all my emails.
    https://www.gofundme.com/f/peter-ridd-legal-action-fund?viewupdates=1&rcid=r01-163435386235-db36100d7e214944&utm_medium=email&utm_source=customer&utm_campaign=p_email%2B1137-update-supporters-v5b
    So the beat goes on.
    He is looking for funding without ties.
    No blind trusts.
    I feel a Reinhardt moment coming on.

  • simonbenson65

    Dr Ridd will be remembered long after his detractors are dead and buried. The sooner academic fraud is made a criminal offence and funding academic fraud included within the crime of obtaining a financial benefit by deception, the better. Universities in Australia have regressed, as the late Pierre Ryckmans said repeatedly, including in this publication [“Do We Need Universities?” (Quadrant, December 1987)]. Ryckmans’ touchstone for what a university should be was John Henry Newman’s 1852 work, ‘The Idea of a University’ in which Newman described a university as “ a place of teaching universal knowledge. This implies that its object is, on the one hand, intellectual, not moral; and, on the other, that it is the diffusion and extension of knowledge rather than the advancement. If its object were scientific and philosophical discovery, I do not see why a university should have students; if religious training, I do not see how it can be the seat of literature and science.” The key words are “ the diffusion and extension of knowledge.” In other words, the democratisation of ideas, not the gagging of diverse views, even if some of those views are at odds with the powers that be of a particular university. Ridd’s case prices Ryckmans right. Universities in Australia are now just businesses like any other for training people. And that training must be done within the four corners of the prevailing woke, cultural Marxism, the new religion of the West. As such, our universities are falling foul of Newman’s injunction that a university ought not have as it’s object “religious training.” That’s precisely what our universities have been dumbed-down to become.

  • simonbenson65

    Erratum. “proves Ryckmans right” – not “prices.”

  • Adam J

    I also found it bizarre that apparently you can’t have knowledge or a well-informed opinion about something and express unless you are an expert.
    But that just raises the question of exactly makes an expert. Furthermore, he could be expressing the opinion of experts in his own words (or there own, off-the-record). Somehow that doesn’t matter.

  • Rebekah Meredith

    pgang (16/10)–Good point! Just as forbidding questioning the “science” of climate change or the “science” of covid matters was long preceded by forbidding questioning the “science” of the “theory” (by the scientific method, it has never passed a hypothesis) of evolution.

  • aco44409

    simonbenson65; I refer to your comment: “The sooner academic fraud is made a criminal offence and funding academic fraud included within the crime of obtaining a financial benefit by deception, the better.”
    ….
    I would suggest that it already is manifest in law; reference to these actions: nonfeasance, misfeasance, or malfeasance, for which the underlying message in the Professor’s essay above is brought to note in this passage:
    ….
    “These universities are legally bound to meet a range of objective criteria in exchange for federal funding.”
    …..
    JCU by not legally following their duty their (in)action will invoke one of those feasances; I’ll let the reader come to their own conclusion as to which one it most likely is.

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