On 15 December 2015, Professor Ridd sent a lengthy email to a journalist expressing strong criticism of the work done by the Great Barrier Reef Marine Park Authority (GBRMPA). He stated that GBRMPA was ‘grossly misusing some scientific “data” to make the case that the Great Barrier Reef is greatly damaged’. He declared that ‘GBRMPA, and the Australian Research Council Centre of Excellence for Coral Reef Studies (ARC) should check their facts before they spin their story’ and that ‘my guess is that they will both wiggle and squirm because they actually know that these pictures are likely to be telling a misleading story’.
The journalist sent these comments on to the head of the ARC who took great offence and sent them on to JCU’s Senior Deputy Vice Chancellor. The university decided to take disciplinary action and issued Ridd with a formal censure on 29 April 2016. Like all academics at the university, Ridd was bound by the Code of Conduct in the university’s Enterprise Agreement with staff.
The Enterprise Agreement contained a strong statement on intellectual freedom and a note that ‘the Code of Conduct is not intended to detract’ from the clause setting out the key elements of intellectual freedom. Intellectual freedom specifically included the rights of staff to pursue critical and open inquiry, and to participate in public debate and express opinions about issues and ideas related to their respective fields of competence.
The intellectual freedom clause stated: ‘All staff have the right to express unpopular or controversial views. However, this comes with a responsibility to respect the rights of others and they do not have the right to harass, vilify, bully or intimidate those who disagree with their views.’
There was no suggestion that Ridd was harassing, vilifying, bullying or intimidating GBRMPA or staff of the ARC. He was in violent disagreement with them, and he was none too genteel in expressing his views. The views he expressed related to his area of expertise. The High Court noted: ‘Nothing said in his email has ever been suggested to be unlawful or defamatory. It was not suggested that the remarks were wrong, or even unreasonable. But JCU concluded that these remarks had breached the JCU Code of Conduct for the failure by Dr Ridd to treat those who held different views with respect and courtesy.’ All five High Court Justices decided that the formal censure should not have been issued. The court noted: ‘The exercise of intellectual freedom to “express unpopular or controversial views” might damage the reputation of another. But provided that the exercise is lawful and respects the legal rights of others, the reputation of others is not protected.’
'Intellectual freedom is the freedom to be very robust and critical of your intellectual peers, but it is not a freedom to ride roughshod over processes for determining workplace complaints lodged by your intellectual peers.'
On 1 August 2017, Ridd was interviewed on Sky News once again taking aim at scientists who held views contrary to his own: ‘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’. He told Alan Jones and Peta Credlin, ‘You can no longer trust this stuff’.
Three weeks later, JCU wrote to Ridd alleging that the interview constituted a prima facie case of serious misconduct. A disciplinary process was to commence under the terms of the Enterprise Agreement and Ridd was instructed to maintain confidentiality. He didn’t. He did a number of things in contravention of the Enterprise Agreement.
On 21 November 2017, JCU issued a Final Censure against Ridd. The Deputy Vice Chancellor wrote that 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’. 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’. Once again, the High Court said this series of observations by the university could not form the basis for a final censure or finding of serious misconduct because it would work an unwarranted interference with Ridd’s right of intellectual freedom.
But by this time, there was a string of other complaints the university had about Ridd, all of which the university claimed to amount to serious misconduct contrary to other parts of the Enterprise Agreement. Ridd did not contest any of those findings, other than claiming that all his conduct was under the protected mantle of intellectual freedom.
The High Court decision has been confusing for many people because it both upheld Ridd’s right to intellectual freedom and the university’s entitlement to sack him for breaches during disciplinary proceedings which had followed upon two wrongly argued censures. Basically, Ridd won on the point of intellectual freedom but he lost on the other aspects of his behaviour which had nothing to do with the exercise of intellectual freedom. Having endured the first unwarranted censure trampling his right of intellectual freedom back in April 2016, Ridd did go rather feral and did not play the rules of the university’s internal disciplinary proceedings. Not once, but twice, the university administrators with their censures showed a cavalier disregard for Ridd’s right to intellectual freedom.
In the High Court, Ridd’s counsel argued that the right to intellectual freedom rendered the rest of the Enterprise Agreement a dead letter. This is how Ridd’s QC opened his case in court: ‘The central issue on this appeal is how does the Enterprise Agreement resolve a conflict between the general obligations imposed by the code of conduct and the specific protection of intellectual freedom in clause 14. The appellant contends that the intellectual freedom right is not subject to, or qualified by, the code. It is therefore not misconduct, or serious misconduct, under the enterprise agreement to exercise a right recognised by the enterprise agreement.’
At the end of argument, Justice Edelman put it to counsel: ‘It was all or nothing for your client’. His counsel responded: ‘Of course, of course... But if we are correct in terms of our construction of clause 14 then the directions go too far because they contravene the clause 14 rights and they also attempt to suppress – and are thereby unlawful – communication, publication of an unlawful process.’
The first take home message given by the High Court, quoting none other than John Stuart Mill’s On Liberty is: ‘[I]ntellectual freedom is not qualified by a requirement to afford respect and courtesy in the manner of its exercise. That interpretation aligns with the long-standing core meaning of intellectual freedom. Whilst a prohibition upon disrespectful and discourteous conduct in intellectual expression might be a “convenient plan for having peace in the intellectual world”, the “price paid for this sort of intellectual pacification, is the sacrifice of the entire moral courage of the human mind”.’
The second take home message is that even if you think your intellectual freedom is being trampled by your employer, don’t think you can simply disregard the processes to which you have previously agreed for determining an employment dispute. Intellectual freedom is the freedom to be very robust and critical of your intellectual peers, but it is not a freedom to ride roughshod over processes for determining workplace complaints lodged by your intellectual peers, even if you vehemently disagree with their views on matters you know a lot about.