Peter Ridd loses High Court appeal against sacking from James Cook University

Dr Peter Ridd has lost a High Court appeal against his controversial dismissal from James Cook University.

Sacked James Cook University professor Peter Ridd has lost a High Court appeal against his controversial dismissal from the institution.

Dr Ridd was fired from James Cook University in 2018 over a series of findings of “serious misconduct” including critical comments about scientific colleagues and breaches of confidentiality.

A 2019 court decision found Dr Ridd had been unfairly dismissed and awarded him $1.2 million in compensation.

However JCU later won an appeal in the Federal Court which Dr Ridd then appealed in the High Court during a hearing in June this year.

During the High Court appeal, lawyers for Dr Ridd focused on three disciplinary decisions by the university against the professor relating to alleged contraventions of the Enterprise Agreement.

These were described as ‘the 2016 censure’, ‘the final censure’ and ‘the termination decision’.

The 2016 censure arose from an email Dr Ridd sent a journalist in December 2015 in which he said “that work we have done recently indicates that the Great Barrier Reef Marine Park Authority is grossly misusing some scientific data to make the case that the Great Barrier Reef is greatly damaged“.

He said photos showing differences in the Great Barrier Reef were “actually a dramatic example of how scientific organisations are quite happy to spin a story for their own purposes, in this case to demonstrate that there is massive damage to the [Great Barrier Reef]”

He suggested the journalist should ask questions about the images and that it was likely the recipients would “wiggle and squirm” because they “know that these pictures are likely to be telling a misleading story”.

Former James Cook University Professor Dr Peter Ridd. Picture: Rohan Thomson

The university investigated and found Dr Ridd had engaged in misconduct under its Code of Conduct by “not acting collegially, not respecting the rights of others, not upholding professional standards, and “not displaying responsibility in respecting the reputations of other colleagues” and also by not ”upholding the integrity and good reputation of the University”.

Dr Ridd was formally censured and directed that in making future public comments in his academic field he must do so “in a collegial manner that upholds the University and individuals’ respect,” the High Court judges wrote in the judgment handed down on Wednesday.

“Nowhere in JCU‘s findings, and at no stage in these proceedings, did JCU deny that Dr Ridd’s remarks about the GBRMPA and the ARC Centre of Excellence in his 16 December 2015 email were views that Dr Ridd honestly held.”

The High Court judges found Dr Ridd should never have been censured over that email.

“JCU‘s submission that Dr Ridd could violate the Code of Conduct by the tone or manner of his expression of honestly held views based on his academic expertise irrespective of whether those views were expressed lawfully and consistently with the legal rights of others is not consistent with the proper interpretation … of the Enterprise Agreement,” they wrote.

“Dr Ridd should not have been given the 2016 Censure.”

The court also heard argument about the ‘final censure’ of Dr Ridd which came after a television interview on Sky News in August 2017 in which he affirmed remarks he made in a book in which he said the reef “quietly grows and waits for the beginning of the next cycle of death and regrowth”.

Dr Ridd said that after the reef “crashes”, the “scientists … then do the same stories and push it all around the world again”.

He made comments including: “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.”

He also said: “ … 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 was that Dr Ridd’s intellectual freedom did not justify his criticism of key university stakeholders in a manner that was “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 capacity to damage the reputation of the organisations he mentioned and therefore the relationship of the University with those bodies.

The High Court found that, as with the 2016 censure, “absence of any assertion that his remarks amounted to harassment, vilification, bullying, or intimidation, or that they were defamatory or not honestly held”, his remarks were protected by intellectual freedom.

But the court found that was not the only reason for the final censure and the university relied upon six other issues to make the decision including emails sent by Dr Ridd from his work email 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,” the judges wrote.

“And Dr Ridd made no submissions that could have justified these remarks otherwise falling within the intellectual freedom protected by (the EA).”

The High Court heard evidence that about the same time as the final censure, Dr Ridd had engaged in further conduct that caused the Deputy Vice-Chancellor making a finding he had engaged in “serious misconduct” in 18 respects.

They included talking to journalists, publishing content relating to his previous censures, breaching confidentiality directions and “damaging JCU‘s reputation by making comments without proper basis”.

Peter Ridd ahead of his High Court appeal in Canberra. Picture: Jamila Toderas/The Australian

In May 2018, Dr Ridd was sacked from his position after 27 years at the university.

The High Court appeal was conducted on an “all-or-nothing basis” and JCU’s position was that all of the findings against Dr Ridd were justified while the professor’s opinion was that none of the findings were justified.

“At the high level of principle at which this appeal was argued, the essential question is whether, in the interpretation of (a clause) of the Enterprise Agreement, the intellectual freedom should be qualified … by a requirement to afford respect and courtesy to others in the expression of issues and ideas in one‘s field of competence and … by obligations of confidentiality in relation to JCU’s disciplinary processes,” the judges wrote.

“The best interpretation of (the clause), having regard to its text, context, and purpose, is that the intellectual 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 judges found while the 2016 censure given to Dr Ridd was therefore not justified, that conclusion did not affect the outcome of the appeal because not all of the conduct fell within the intellectual freedom clause.

“This litigation concerned conduct by Dr Ridd far beyond that of the 2016 Censure, almost none of which was protected by the intellectual freedom in (the clause),” the judges said.

“That conduct culminated in the termination decision, a decision which itself was justified by 18 grounds of serious misconduct, none of which involved the exercise of intellectual freedom.”

The appeal was unanimously dismissed.

In an emotional statement, Dr Ridd said his case was “just a small battle in a much bigger war”.

“We lost, in my opinion, because JCU’s work contract, under which I was employed, effectively kills academic freedom of speech – and the contract is effectively the law,” he said.

“So, JCU actions were technically legal. But it was, in my opinion, never right, proper, decent, moral or in line with public expectations of how a university should behave.”

Dr Ridd said he regularly asked himself if he knew the outcome of his controversial comments during an interview in which he criticised the quality assurance of some Great Barrier Reef related research, would he do it again.

“It has cost me my job, my career, over $300K in legal fees, and more than a few grey hairs,” he said.

“All I can say is that I hope I would do it again – because overall it was worth the battle, and having the battle is, in this case, more important than the result.

“This is just a small battle in a much bigger war. It was a battle which we had to have and, in retrospect, lose.”

Dr Peter Ridd speaking at a forum on the Great Barrier Reef organised by LNP candidate for Gladstone Ron Harding. Picture: Rodney Stevens

Dr Ridd said his case demonstrated that “further legislation is required to force universities to behave properly”.

“The Commonwealth government introduced excellent legislation in parliament early this year, partly in response to our legal case, to bolster academic freedom of speech,” he said.

“It is an excellent step in the right direction.

“If my case had been fought under this legislation, I would have had a better chance of winning. But it would still have been far from certain. There would still have been a clash between the new legislation and the work agreement.”

A JCU spokesman said the High had “confirmed that the termination of Dr Ridd‘s employment had nothing to do with academic freedom”.

“The High Court decision finally determines the legal proceedings first initiated by Dr Ridd in 2017,” he said.

“James Cook University at all times has made clear that it strongly supports the pursuit of intellectual enquiry and the freedom of staff to engage in academic and intellectual freedom.

“This commitment is reflected in the assessment of the University as fully aligned with the French Model Code on Academic Freedom and Freedom of Speech by the Department of Education, Skills and Employment.”

The spokesman said given the passage of time, the litigation related to interpretations of the uni’s 2013 enterprise agreement which had been altered in a replacement agreement in 2018.

After the decision was handed down, Education Minister Alan Tudge said freedom of speech and academic freedom are “the most fundamental principles of a university”.

“While I respect the decision of the High Court, I am concerned that employment conditions should never be allowed to have a chilling effect on free speech or academic freedom at our universities,” he said.

“University staff and students must have the freedom to challenge and question orthodoxies, without fear of losing their job or offending others.

“This is why I have insisted that universities adopt the French Model Code to provide a clear statement about the importance of freedom of speech and academic freedom.”

He said 41 Australian universities now have policies aligned with the Model Code and will report against it annually.

“We need a culture in our universities of accepting and welcoming open robust debate, even if some feel offended in the process,” Mr Tudge said.

“I am concerned that, in some places, there is a culture of closing down perceived “unwelcome thoughts” rather than debating them.

“I will be getting further advice on the implications of the Ridd case. There are few things more important for the advancement of truth and knowledge than having open, robust debate at our universities.”

Katter Australian Party MP Nick Dametto said a “dark cloud hangs over the future of academic freedom of speech in Australia following the High Court’s ruling today”.

“We believe that, in the court of public opinion, Dr Ridd has been successful,” Hinchinbrook MP Mr Dametto said.

“As a scientist, academic and individual we believe he deserves to be applauded for putting everything on the line to fight for what he, and many others, believe in, which is the fundamental importance of freedom of speech and academic integrity.

“In the name of standing up for what he thought was morally right and just, Dr Ridd has sacrificed his job and potentially his career and reputation, but he has done this because he believed it was right to at least question the science.”