The Peter Ridd case hits the High Court ... James Cook University's termination of an academic's employment ... The freedom to say whatever you like ... Free speech and all that ... Being beastly about other academics ... Promoting views contrary to mainstream science ... Hero of the climate deniers ... Untangling the Code of Conduct and the Enterprise Agreement ... Anna Kretowicz reports
The fight for intellectual freedom involving academic and now martyr (to some), Peter Ridd, who "lost his job for doing his job", will continue to play out in the High Court on June 23, 2021, following a grant of special leave to appeal.
It comes down to the "question of construction" of two contractual documents: a university's Enterprise Agreement up against a Code of Conduct.
Background
At the helm sits Peter Ridd, an ex-professor of physics at James Cook University (JCU), whose tenure was terminated on May 2, 2018 for serious misconduct after 27 years of employment.
In 2015, Ridd wrote to a journalist suggesting that a number of reports produced by colleagues at the Great Barrier Reef Marine Park Authority (GBRMP) and the ARC Centre of Excellence in Coral Reef Studies (ARC) were unreliable, commenting that they should "check their facts before they spin their story".
It got better, or worse. There was an interview on Sky News with Alan Jones and Peta Credlin, which was described by one of Ridd's colleagues as "trashing JCU's relationship with ARC, GBRMPA and [the Australian Institute of Marine Science] again".
In May 2019 Justinian reported that with his claim the Great Barrier Reef is in good health and that it would quickly recover from coral bleaching, Ridd had become the darling of climate deniers at News Corp, Sky News and the IPA.
He claimed that the majority of scientists who predicted damage to large tracts of the corals were blinded by emotion and that "we can no longer trust scientific organisations".
JCU instigated internal investigations and requested Ridd to maintain confidentiality throughout.
Ridd, in an email to various colleagues, lamented that the "whole university system pretends to value free debate, but in fact it crushes it whenever the 'wrong' ideas are spoken. They are truly an [sic] Orwellian in nature".
JCU twice censured Ridd before terminating his employment for conduct contrary to the university's Code of Conduct, and also for breaching the confidentiality directions.
Determined to tackle Big Brother, Ridd instituted proceedings in the Federal Circuit Court. Throughout the entire proceedings (including before the High Court), he didn't dispute that he engaged in any of the conduct or breached confidentiality.
Rather, he pleaded that he was exercising his right to intellectual freedom as conferred by clause 14 of JCU's Enterprise Agreement. So, his behaviour was protected as it didn't harass, vilify, bully or intimidate those who disagreed with his views.
Judge Salvatore Vasta found in Ridd's favour, in that JCU had unlawfully terminated his employment because his behaviour was protected by cl.14.
On appeal to the Full Federal Court, the pendulum swung back to JCU with a finding that the Enterprise Agreement and Code of Conduct functioned together, where the former informs "the content of the exercise of intellectual freedom" while the latter "regulates the manner in which that freedom may be exercised".
Ridd had no "untrammelled right" to express his views.
Ridd and the wide, blue beyond
Ridd sought special leave to appeal to the High Court, spurred on as it is something “that rests heavily on [his] conscience"… plus some $750,000 from a GoFundMe and the ongoing support of the Institute of Public Affairs (which has a flourishing business supporting regressive causes).
Ridd also claims that:
"After I was fired, it was proven beyond doubt that I was correct when a group of seven international scientists who audited eight of the major studies from JCU coral reef centre found them ALL to be 100% wrong."
The "proof" Ridd refers to is actually an internal investigation at JCU into (proven) data fudging by a marine biology PhD student, Oona Löndstedt. And the seven scientists had their beef (or rather, fish) with a paper published by her supervisors that apparently refutes findings that ocean acidification impacts fish.
The legal context
The two provisions in question are the Code of Conduct, referred to in cl.13 of the Enterprise Agreement, and cl.14 of the Enterprise Agreement, which enshrines intellectual freedom.
Clause 13.3 states that "the Code of Conduct is not intended to detract from Clause 14, Intellectual Freedom".
Clause 14.1 provides that "JCU is committed to act in a manner consistent with the protection and promotion of intellectual freedom within the University and in accordance with JCU's Code of Conduct".
Clause 14.3 is a qualifier, in that "all staff have a 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 ...".
The conflict, as put before the High Court, is that the Code of Conduct imports stricter standards of behaviour while the intellectual freedom in cl.14 has "higher limits" in allowing any sort of expression, so long as it does not amount to bullying, vilification, harassment or intimidation.
Before Justices Gordon, Gageler and Edelman, counsel for Ridd submitted that Ridd breached the Code and committed serious misconduct, but was nonetheless protected by cl.14 of the Enterprise Agreement.
Or, as Justice Edelman reframed it, a submission that "the intellectual freedom is an intellectual freedom to speak disrespectfully and discourteously". A good start.
Essentially, the appellant's argument is that the final words in cl.14 could not "bring in by a side wind" the stricter standards of the Code of Conduct.
Bret Walker SC for JCU, by way of a bit of side wind, argued:
"It is a very long bow indeed ... to suggest that behaving with respect for others is inimical to the exercise of intellectual freedom, bearing in mind, in particular, that others have intellectual freedom, not just the first of the two interlocutors."
In relation to the clauses, JCU contends that the Code of Conduct doesn't detract in any way from cl.14's intellectual freedom.
Walker accepted that there was drafting difficulty in construing cll 13.3 and 14.1 together, and this sticky point is what the grant for special leave intends to resolve.
The forecast predicts a Rather Blustery Day at the High Court on June 23, but it seems that Ridd has taken a leaf from the ever-optimistic Winnie the Pooh: to the side wind that is the Code of Conduct he goes, "Oh bother ... I shall have to go on".