Reposted from Jennifer Marohasy’s blog
June 25, 2021 by admin
Does the principle of academic freedom protect Australian academics who publicly criticize their academic colleagues and university management? A case in the High Court this week offers a rare opportunity to test academic freedom in Australian universities.
The case stems from an academic dispute over the threat to the Great Barrier Reef from climate change. Peter Ridd, a professor at James Cook University, believed his academic colleagues at a university research center and partner institution, the Great Barrier Reef Marine Park Authority, overestimated the risk.
In comments to print journalists and in appearances on television, Ridd criticized the reports produced by these researchers as flawed and untrustworthy. In particular, he said that his colleagues knew that they were “likely to tell … a misleading story” and that they would “wiggle and squirm” when asked.
Disciplinary proceedings began. Ridd was instructed to maintain the confidentiality of the process and, more unusually, not to “trivialize”, “satirize” or “parody” the process. Perhaps it was predictable that Ridd would ignore these instructions and continue to publicize and belittle the trials against him. After two formal grades, the University terminated Ridd’s employment.
Ridd’s lawsuit against the university was successful in the federal court, but that judgment was overturned on appeal by the federal court. This week the High Court heard Ridd’s last appeal.
In recent years, freedom of expression at universities has been the focus of the media. But this case raises questions about a related but distinct idea: academic freedom. That is, it is about the freedom of scientists to discuss their field of research and to question the work of others as part of the scientific investigation process. This freedom is unique at universities and protects their core and most important function: the knowledge advantage through teaching and research.
The question of academic freedom is contained in a more prosaic legal question. In essence, it is about the interaction of two employment instruments. The first, the university’s corporate agreement, contains a commitment to “freedom of thought” and gives employees the right, for example, to ask critical questions, participate in debates and express opinions, including the operations and policies of the university. The right to express one’s opinion extends to expressing “unpopular or controversial views” but not to harassment, defamation, bullying or intimidation of those who disagree. The second is the University’s Code of Conduct. The code obliges employees, among other things, to treat their colleagues with “courtesy” and “respect” and to uphold the reputation of the university.
None of the instruments are unusual. Similar or equivalent instruments can be found at many other Australian universities. In simple terms, the question in this case is: do they contradict and if so, which instrument gives way to the other? Ridd, of course, argues that the commitment to freedom of thought contained in the corporate agreement is the most important one. The university argues that there is no conflict and that the code is fully in line with the company agreement.
It is not a simple question, and there is no place in this post to fully cover the legal complexities of the case. From our point of view, solving the legal question requires a return to the basic idea: academic freedom. It has a long provenance and internationally recognized elements including:
1. The freedom of scientists to research, critically question and teach freely;
2. University autonomy; and
3. The involvement of scientists in the university management, be it through formal participation in the university management or through the freedom to criticize the university management.
While the manner in which these Principles are implemented will necessarily vary, the Principles themselves are well recognized in Australia, including through the Independent Review of Freedom of Expression in Universities and in the Act by which former Chief Justice Robert French carried out James Cook University was founded.
Against this background, the obligation to “freedom of thought” in the company contract is to be understood. The rights encompassing the belief in “freedom of thought” are well known elements of the principle of academic freedom. The use of the term “intellectual freedom” does not mean a restriction or rejection of the principle of “academic freedom”, but an expansion: In the company agreement, the principle of academic freedom is extended beyond academic staff to non-academic staff.
Against this background, the obligation to “freedom of thought” is better understood as the primary obligation to which the obligations of the Code may have to give way. This perspective puts the core purpose of a university and the practical realities of exercising academic freedom in the foreground. Some key expressions of academic freedom, such as accusations of academic fraud or mismanagement or mismanagement in the university, are simply inevitably rude and defamatory.
Ridd’s behavior, however uncomfortable, involved exercising two important elements of the principle of academic freedom: expressing opinions on scientific issues and criticizing the university administration.
In general, restrictions on such expressions of academic freedom should be infrequent, carefully limited, and very well founded. Neither inconvenience, irritation, quarrels among colleagues nor the embarrassment of university partners are justification enough. Given the importance of the principle of academic freedom, the effort involved in justifying restrictions is likely to be very high. In this case, this burden was not met.
* This article by Adrienne Stone and Joshua Forest was first published by Graham Young on On Line Opinion, click here and is republished here with permission. Adrienne Stein is Redmond Barry Distinguished Professor in Law at the University of Melbourne and a Kathleen Fitzpatrick Laureate Fellow. Joshua Forrest is a research fellow at the Center for Comparative Constitutional Studies at Melbourne Law School.
The feature image was captured by Clint Hempsall in January 2020 at a location called Gotham City, a well-known dive site at The Ribbon Reefs. It shows redfish and giant trevally circling the tip of a bomb before one smashes coral to attract a smaller fish, its prey.