The sacked professor Ridd's freedom of speech

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Last week, Peter Ridd, the Institute of Public Affairs’ poster boy for academic freedom, lost his case in the High Court by 5-0. Ridd was employed by James Cook University (JCU) for 27 years. For 15 of those years he managed JCU’s Marine Geophysics Laboratory. From 2009 until 2016 he was the head of physics. He was ranked globally by ResearchGate within the top 5 per cent of researchers.

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.

 

 

Frank BrennanFr Frank Brennan SJ is the Rector of Newman College, Melbourne, the Distinguished Fellow of the P M Glynn Institute, Australian Catholic University, and the former CEO of Catholic Social Services Australia (CSSA). He is a peritus at the Fifth Plenary Council of the Australian Catholic Church.

Main image: Man staring at blackboard in empty lecture hall. (Peter M Fisher / Getty Images)

Topic tags: Frank Brennan, Peter Ridd, freedom of speech, IPA, JCU, High Court of Australia

 

 

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Existing comments

I wonder, when it was possible, how an appeal to the Privy Council would go? It could, I suppose, go either way and would, of course, cost the earth. I understand the High Court did not award JCU costs against Professor Ridd, which is very interesting. The takeaway for any dissenting academic is that, if you do dissent, to read your Enterprise Agreement with the utmost care, or better still, get a competent solicitor to so do. I wonder what message JCU's action in this case sends out to the academic world outside Australia? Are there scientists who would now not take up, or apply for, a tenured academic position in this country? For non-tenured academic staff and PhD students JCU has set a dreadful example. A non-tenured academic following Professor Ridd's example would be playing Russian roulette.


Edward Fido | 19 October 2021  

You have to worry when Peta Credlin and Alan Jones are on your side!!


john frawley | 19 October 2021  

Hmmm... maybe this simply comes down to the primary excessive hubris claim, a misnomer: Australian Research Council Centre of Excellence for Coral Reef Studies (ARC); Ridd's criticism challenges the "Centre of Excellence for" which may be proved an overstated assumption. Perhaps it might be more accurately named "Centre for Excellence of..." in that it probably has some excellence but not as much as planned when named... or its one centre, but not the (only) centre. I might be labouring the nonsensical name a bit but guarantee that the committee who came up with the title spent at least a day on the syntax and $a few grand on a logo graphic design. If you've got 30 minutes check out their website, mission statement and affiliates; don't panic when the ARC vision includes Environmentally sustainable offshore oil and gas development .... then ask yourself who are their "stakeholders" they serve and why would their own affiliate fellows at JCU end up in High Court. It seems odd an expert research fellow cannot criticize the work within their wider association (AIMS). Seems someone wants to put a lid on to ensure future grants. Remember the $400 Million that went out without tender? Thanks for your thoroughly enjoyable and enticing article.


ray | 19 October 2021  
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‘primary excessive hubris claim, a misnomer: Australian Research Council Centre of Excellence for Coral Reef Studies (ARC)’ Good point. ‘Australian Research Council Centre of Excellence for Coral Reef Studies’ should be ‘Australian Research Council Centre for Excellence in Coral Reef Studies’. In the scientific method narrative, truth (or excellence) is something we strive for, not something we know we have reached. Or, at least, that’s what scientists say in public.


roy chen yee | 20 October 2021  

A fascinating news item, Frank, with two equally exciting responses, from a corner of academic life that is usually colonised by researchers whose greater energies are invariably deployed in deflecting attention from university administrators desperate to make a fast buck and prepared to sell their souls to ensure their own big-bucks, high-risk contract survival. One has to wonder if another lesson from now on is for high visibility scholars like Ridd to submit their professionally-related communication to university ethics committees prior to pressing the SEND button. So much for the myth of academic freedom! Big thanks for focusing your penetrating interrogatory searchlight into these murky ethical waters.


Michael Furtado | 20 October 2021  

I think it's a pity the High Court couldn't invent some reason for disallowing the University's right to insist its proceedings had to be kept secret. Because there's too much of that sort of thing (team loyalty etc.) going on: for example, you can be elected to your local government council yet not allowed to express any disagreement with a Council decision. Too much use of secrecy clauses to benefit corporate interests, not enough openness and honesty. Too severe penalties (loss of career) for breaking petty rules.


Russell | 20 October 2021  

No academic should expect to be taken seriously on anything ever again after resorting to collaboration with Alan Jones and Peta Credlin on Sky News.

That outlet has been proven countless times to be the source of blatant misinformation and malicious lies.


Alan Austin | 20 October 2021  

J M Coetzee’s prize-winning novel “Disgrace” tells the story, in the first person, of an academic who resigns from his work due to a crisis. He most likely would have been sacked if he had not resigned. Academia is a very different world, or maybe not, to the world of the proletariat. We are all subject to sometimes vicious scenarios.


Pam | 21 October 2021  

Professor Ridd's great mistake was to send an email to a journalist. Perhaps it was a knee jerk reaction to frustration. With his academic record he should have presented the evidence for his disagreement with other agencies in a formal peer-reviewed paper in a reputable international journal. If following peer review his premise was upheld. he might well have found that he would have retained his job and others may have lost theirs


john frawley | 21 October 2021  
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John, you may well be correct in relation to academy but I believe the extended AIMS group has interest which encompasses other than what would be "research" and fellowship. When we hear about any "Environmental Impact Study" this is double-speak for assessment of how we can dig a BIG hole or drill for oil and offset the mess with 5 acres of swampy frog habitat or an artificial reef made from tyre waste, signed off "Approved" by some whizz-kid. I won't malign the ARC or the "stakeholders" but it sure helps to get an EIS signed off by someone with Excellent credentials and it'd be handy to be able to send documents and donations to the same address, just to make sure nothing gets delayed... When you're the "Centre for Excellence" business knows where to find all the experts they need in one place, so it helps if they have policy and unified thoughts.


ray | 23 October 2021  

A pity Frank didn't give us just a little more detail on what he calls Dr Ridd's 'rather feral' behaviour to help us understand the legal bases for the University's termination decision. According to the judgement text (para 57), Ridd's (uncontested) actions included: "..deliberate disclosure by Dr Ridd of confidential information to The Australian newspaper in around November 2017,.. publishing confidential documents relating to the 2016 and 2017 disciplinary processes, "deliberately and repeatedly" breaching confidentiality directions given to him by JCU, including disclosing information to journalists; damaging JCU's reputation by making comments without proper basis and in deliberate disregard of his obligations to JCU; .... publishing comments about the disciplinary process that were said to be untrue, misleading, or not full or frank; communicating with another staff member in a manner that was threatening, insubordinate, or disrespectful; and preferring his own interests and those of the Institute of Public Affairs above the interests of JCU in breach of his obligations to avoid conflicts of interest."


John Waddingham | 25 October 2021  

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