Dr Peter Ridd has lost his High Court challenge to his sacking by James Cook University. But the scientist has every justification for stating that he has “lost the battle but will continue the war”. It might even be said that he has ensured his final victory. On the other hand, JCU might have won the case, but they have every reason to slink from the courtroom in shame.
Ridd’s High Court challenge was the culmination of a long-running saga that began when he publicly attacked climate change-related research relating to the Great Barrier Reef and the trustworthiness of research centres such as the Australian Institute of Marine Science. JCU sacked Ridd, then their head of physics, for breaching their code of conduct requiring that he air criticism of colleagues or the university in a collegial and respectful manner. Ridd initially won a $1.2m settlement. The settlement was overturned on appeal to the Federal Court. Ridd then took the case to the High Court.
But the High Court’s dismissal of Ridd’s challenge is certainly not a clear-cut victory for JCU.
Essentially, Ridd lost because he chose to appeal on an “all or nothing” basis. This is a risky tactic: consider the infamous “McLibel” case in the UK. The McDonalds corporation came off so badly in that massive and long-running case essentially because of its insistence that the offending pamphlet was entirely false. In the Ridd case, the panel headed by Chief Justice Susan Kiefel found that neither the position of the primary trial judge nor the Full Court could be entirely accepted.
In other words, the Court ruled that the university abrogated Ridd’s freedom of speech — but that its code of conduct, strictly legally, allowed it to. This case turned on the relationship between the university’s code of conduct – with its requirement to act collegially and respect the reputation of colleagues – and the guarantee in the enterprise agreement of the right to express unpopular or controversial views.
Indeed, the Court ruled that JCU was wrong to censure Ridd for making honest and lawful statements on matters within his expertise. In the words of Chris Merritt, vice-president of the Rule of Law Institute of Australia, “Those findings are a mark of dishonour that will never be expunged”.
Notably, the judges chose to cite John Stuart Mill’s famous advocacy for free speech, On Liberty, before declining to make an order that Ridd should pay the university’s legal costs. This means that, while they won the case, the university has been hit with quite a penalty. Top-flight lawyers like Bret Walker SC don’t come cheap.
In the final washup, as Merritt says, “Ridd is a modern martyr to freedom of speech. James Cook University is tainted”.
Indeed, Ridd is arguing that his loss is more likely to spur political action than a win. Certainly, federal Education Minister Alan Tudge has commented that the outcome was concerning and that he had requested “further advice about the implications”.
“We need a culture in our universities of accepting and welcoming open robust debate, even if some feel offended in the process … I am concerned that, in some places, there is a culture of closing down perceived ’unwelcome thoughts’ rather than debating them,” he said.
Constitutional law expert George Williams also argues that the federal government needs to act. Professor Williams, of UNSW, recommended the “clear cut-through” of legislation to enshrine freedom of speech for academics,
The federal government has already succeeded in forcing the nation’s universities to unanimously sign up to former High Court chief justice Robert French’s model free speech code. Tudge has previously threatened to make the code law if universities did not implement it. His comments on the Ridd case suggest that he is preparing to hold universities’ feet to the fire if they do not honour the code.
“Freedom of expression is the most fundamental foundational principle of a university. Academics who don’t believe in free speech, or cannot handle someone challenging their work, should not be at a university,” Tudge says.
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