Decision a blow for Ridd but a win for the country

Let’s put emotion to one side and be clear about what happened in the High Court this week.

Former James Cook University Professor Peter Ridd. Picture: Cameron Laird/The Australian

Let’s put emotion to one side and be clear about what happened in the High Court on Wednesday. It is true that marine physicist Peter Ridd lost his appeal against James Cook University. But what is a blow for the professor is nonetheless a terrific win for the country.

In a unanimous decision, the nation’s highest court delivered a critical defence of intellectual freedom. And that win would not have happened without Ridd’s courage and determination to stand up for a value fundamental to the purpose of a university.

The High Court told JCU it had no right to censure Ridd for challenging the climate change research by his colleagues at the university. It also told JCU that it had no place censuring Ridd for his tone or the manner in which he challenged the views of others. And it tossed aside claims by JCU that Ridd breached the univer­sity’s code of conduct by behaving in an uncollegial fashion.

Thanks to Ridd, for the first time the High Court made it clear that intellectual freedom is of ­critical importance at a university because it is instrumental “in the search for truth in the contested marketplace of ideas”.

Citing the words of legal philosopher Ronald Dworkin, the court said: “Intellectual freedom plays an important ethical role not just in the lives of the few people it protects, but in the life of the community more generally to ensure the primacy of individual conviction: ‘not to profess what one believes to be false’ and ‘a duty to speak out for what one believes to be true’.” Critically, the High Court held that in the case of a conflict between the intellectual freedom clause in Ridd’s enterprise bargaining agreement and JCU’s code of conduct, intellectual freedom won.

That single statement should send a powerful message to university administrators and others who may try to do a JCU – use provisions in a university code of conduct to professionally smother an academic who may be challenging some orthodoxy.

The High Court decision is perfectly timed. It comes after the French review set down a charter of academic freedom for every university to adopt, and after lawyer and emeritus professor Sally Walker’s damning review into the implementation of these charters.

Now that every Australian university has finally, and many reluctantly so, adopted an academic freedom charter, the High Court effectively has put university administrators on notice that academic freedom trumps their attempts to stifle that freedom by using a code of conduct.

Using intellectual freedom and academic freedom interchangeably in this case because Ridd is an academic, and the EBA uses the term intellectual freedom, the court said protecting the reputation of others does not trump intellectual freedom. Neither does civility. Quoting John Stuart Mill’s On Liberty, the court said: “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’.”

This landmark win for academic freedom in Australia will be squandered if people focus on Ridd losing his appeal in the High Court. Concentrating on that narrow, personal loss will minimise Ridd’s contribution to the High Court decision and it will play straight into the hands of those who don’t want to hear what the High Court said about intellectual freedom.

Let’s be very clear why Ridd lost his appeal this week. He did not lose on the intellectual freedom front. Instead, the court said Ridd was rightly censured and sacked for breach­ing confidentiality requirements, contained not just in the code of conduct but in Ridd’s EBA too. Clause 54.1.5 of the EBA binds all parties to respect the confidentiality of those involved in the management of misconduct and serious misconduct processes.

In other words, Ridd’s right to intellectual freedom extends to criticising JCU decisions and processes but does not extend to breaching his obligations to respect the confidentiality of people involved in discip­linary processes.

Ridd’s legal team could have argued that you can’t sever the cause of the disciplinary hearing from the process of the disciplinary hearing. If the cause was invalid, it infected the process with invalidity. But they didn’t.

Seeking a slam-dunk win for intellectual freedom, they claimed every action by Ridd was protected by the intellectual freedom clause in the EBA. And that strategy led to Ridd losing because the High Court found that not every action by Ridd was covered by that intellectual freedom clause. The court decided that even though JCU was wrong to infringe Ridd’s intellectual freedom, once disciplinary proceedings started the confidentiality rules around those proceedings, and agreed between the parties in the EBA, remained valid. In a swipe at Ridd’s legal team the High Court noted the “curiosities” in their strategy by failing to argue that Ridd could not be in breach the confidentiality provisions given the information was already in the public domain.

Though it triggered a loss for Ridd, the court’s logic in upholding the confidentiality rules on disciplinary proceedings is impeccable.

By analogy, just because a defendant is ultimately acquitted of a crime of which they are charged doesn’t entitle them to ignore the rules governing the trial or to say they are invalid. If, for example, the defendant commits a contempt of court in a trial for an offence of which they are ultimately acquitted, they still can be punished for the contempt though not for the original offence. Were it otherwise, the applicability of the rules of evidence and procedure would vary depending on whether the defendant was acquitted. That makes no sense.

There is an interesting aside from the High Court’s spirited defence of confidentiality. When the court said “confidentiality provisions serve the legitimate interests of all parties to JCU’s dispute resolution processes”, it surely issued a warning to those in other areas who want to throw away confidentiality when it suits them. That includes myriad complainants and their lawyers in workplace disputes about sexual harassment who want the big payout that comes from a confidential settlement but then want to ditch their signed nondisclosure agreement when it suits them down the track. Confidentiality should not be a one-way street. That issue will keep for another day.

Wednesday’s High Court decision marks a terrific legal win for intellectual and academic freedom in Australia. But it doesn’t solve the practical problems facing academics. If university administrators are intent on stifling them, short of an academic going to court, the stifling attempts prevail.

Not many people have Ridd’s courage or the support that came from parts of the community concerned to uphold his right to challenge climate orthodoxy.

This reality means universities still can and will prey on academics, bullying them with codes of conduct in the certain knowledge it is easier for an academic to pull their head in to save their career rather than risking that career by taking on Goliath. The deadening effect of this on our search for truth will be catastrophic for human progress.

Remember that many univer­sities have deliberately drafted draconian codes of conduct to manage their staff, and they had to be dragged kicking and screaming into adopting academic freedom charters.

These institutions need one more boot up the proverbial backside. Education Minister Alan Tudge should legislate to make it abundantly clear that a charter of academic freedom trumps the university’s code of conduct. That much should be clear now, but it’s not. A perusal of charters drawn up by some of our universities reveals language that is not as crystal clear as it should be about a conflict with a code of conduct.

If Tudge settles this issue, it will greatly support academics who cannot afford to go to court to establish that their intellectual freedom trumps management controls in a code of conduct. This move also will tell university administrators to pull their heads in. And, most important, it will remind vice-chancellors that every academic needs to know that, on intellectual freedom, the VC has their back.

As former High Court chief justice Robert French said in his 300-page review, you can have a robust charter of academic freedom but it comes down to how it is applied, and enforced. In other words, culture matters: “A culture powerfully predisposed to the exercise of freedom of speech and academic freedom is ultimately more effective than the most tightly drawn rule. A culture not so disposed will undermine the most emphatic statement of principles,” he wrote.

It has been a long, painful, sometimes circuitous road to arrive where we did this week. Ridd’s monumental contribution to the High Court’s robust defence of intellectual freedom should not be undercut by those who are unhappy that they didn’t get their slam-dunk win.