Last month’s High Court ruling on Peter Ridd versus James Cook University concludes a third deep dive by judges into a Kafka-Down-Under policy maze about academic freedom and its lawful limits.

Should sharp, dismissive criticism of other scholars’ research be sanctioned as misconduct, if university managers find it uncollegial or disrespectful? In this case, complaints about Ridd’s failure to respect reputations in 2016 and 2017 culminated in his dismissal in 2018. By then (as I outlined last year) Ridd had taken legal action to contest what he saw as his right to academic freedom and an unjust disciplinary process. (See Notes below for a Court summary of the facts).

The High Court found flaws in earlier rulings, by both the Federal Circuit and Full Federal courts. The first had affirmed Ridd’s view in 2019; the second, JCU’s in 2020. The High Court also found flaws in the cases put by both sides this time. That no court reached the same set of findings shows how complex the matter became. This was due in part to vaguely-worded, overlapping policies: intellectual freedom rights in JCU’s Enterprise Agreement and staff obligations in its Code of Conduct. And in part, to different assumptions about what academic freedom and professional conduct (should) entail in a university context.

Image: The Trial (Wolfgang Lettl, 1981) 

The High Court dismissed Ridd’s appeal against the 2020 ruling that JCU’s ultimate decision to terminate was lawful. But also reaffirmed one of Ridd’s key claims about his right to academic freedom. This JCU had denied when sanctioning Ridd in 2016, 2017 and 2018; and subsequently in all three courts.

The broad facts of the case are as follows. After complaints raised with the Senior Deputy Vice-Chancellor and Vice-Chancellor by coral research centre director Terry Hughes, Ridd was formally censured for failing to be collegial and respectful, as required by JCU’s Code of Conduct. At issue were comments (in 2016) that Reef research institutes had almost no quality assurance, had published misleading material, and should check their facts before they spin their story. And (in 2017) that we can no longer trust research by scientists who genuinely believe(d) there are problems with the Reef, but were emotionally attached to their work, and not very objective.

The 2016 comments were in an email to a newspaper journalist. The 2017 comments arose in an interview on Sky News television. The 2016 censure from the Senior Deputy Vice-Chancellor told Ridd not to engage in such misconduct again, and warned that if he did, it could amount to serious misconduct (see Notes below). In sum:

I am issuing you with a formal censure. Should there be a further breach during your employment at James Cook University, it could lead to further disciplinary action which could amount to serious misconduct. In future it is an expectation that in maintaining your right to make public comment … in an academic field in which you are recognised, it must be in a collegial manner that upholds the University and individuals respect.

At the time Ridd took issue with the censure internally, considered it a thinly veiled threat of dismissal, and called on the SDVC to withdraw it. The SDVC refused. After that came a media report that Ridd had been threatened with the sack for not displaying responsibility in respecting the reputations of other colleagues, as per the Code. He was quoted saying that he felt like a whistleblower and asking: Is there a robust debate without intimidation?

This set the scene for a dispute when Hughes raised a second complaint, this time with the VC, after the Sky News interview in August 2017. Ridd received a Summary of Allegations from HR for a prima facie case of serious misconduct, linked to various Code of Conduct clauses. This was later clarified to mean that Ridd had repeated his 2016 offence, and failed to follow a reasonable direction not to do so. But it didn’t identify who the complainant was, other than to say the complaint had been raised with the Vice-Chancellor.

Meanwhile Ridd believed that he wasn’t required to profess his views any more respectfully than he had done. Reversing the Full Federal Court majority view on this point, the High Court agreed. As University of New South Wales law professor George Williams put it in The Australian:

The findings of the High Court supported Ridd in his trenchant criticism of his colleagues’ research … The court found James Cook University was wrong to censure him for the statements, and that these statements did not justify his dismissal … the High Court decision … will have a large and lasting impact on academic freedom in Australia. It sets down a clear legal marker … that academics must not be punished for criticising the research of colleagues in intemperate or discourteous ways. This will cut across codes of conduct in Australian universities that prioritise respectful behaviour…

In sum, for academic freedom to (firmly) underpin the pursuit of truth and knowledge, respect should be seen as a laudable norm but a risible rule. Once such an aspiration is formalised as a rule, the fact of its enforceability readily promotes intolerance. To make respect mandatory, the High Court suggests, is to undermine the “core meaning of intellectual freedom”:

…the instrumental and ethical foundations for the developed concept of intellectual freedom are powerful reasons why it has rarely been restricted by any asserted “right” of others to respect or courtesy … As (legal philosopher) Dworkin wrote in an essay invoking Rabelais, Voltaire, Rushdie, Galileo, Darwin, Wilde, and Mencken: “The idea that people have that right … is absurd … we cannot recognize a right to respect, or a right to be free from the effects of speech that makes respect less likely, without wholly subverting the central ideals of the culture of independence and denying the ethical individualism that that culture protects”…

This accords with the case I put last year, that JCU’s handling of complaints about Ridd’s views on Reef science tossed any meaningful concept of academic freedom overboard. As the High Court put it (echoing Dworkin and 19th century philosopher John Stuart Mill): however desirable courtesy and respect might be, the purpose of intellectual freedom must permit of expression that departs from those civil norms.

The High Court stance concurs with the 2019 French Review‘s general conclusion on the freedom/respect problem: it does not require much imagination to apply (terms such as “lack of respect”) to a considerable range of expressive conduct

…And with that of Open Minds, a 2021 book about academic freedom in Australia, whose authors conclude that: the requirement for “civility” or “collegiality” risks turning a common … form of academic dispute into an occasion for suppressing academic freedom…

…And with that of the Federal Circuit Court judge in 2019: Incredibly, the University has not understood the whole concept of intellectual freedom. In the search for truth, it is an unfortunate consequence that some people may feel denigrated, offended, hurt or upset … when diametrically opposed views clash…

Seen in this light, the admonishments that JCU executives relied on when sanctioning Ridd (see Notes) seem neither reasonable nor realistic. The problem, they kept insisting, was not with the content of his views on research quality, but with the uncollegial and disrespectful manner in which he’d expressed them. Thus in 2017, JCU’s standard response to media queries about Ridd facing disciplinary action again would be: James Cook University values academic freedom and academics are free to discuss matters of science within their fields of expertise, as per the University’s Code of Conduct.

As one of JCU’s DVCs explained to The Guardian after Ridd’s dismissal in 2018: The issue has never been about Peter’s right to make statements – it’s about how he has continually broken a code of conduct that we would expect all our staff to stick to, to create a safe, respectful and professional workplace

Accordingly, in all three court proceedings JCU argued that there was no conflict between its EA obligation to protect and promote intellectual freedom and its enforcement of the Code’s various respect obligations. But in practice, there’s a Catch-22 with being free to profess your view as per the Code. As I outlined last year, the bureaucratic logic of the primary complaints and sanctions against Ridd went like this: If your expert view is that your colleagues’ research is unreliable or misleading, of course you are free to say so … But if you disrespect them (by calling their research unreliable or misleading), that is a breach of the Code…

Recognising this, the High Court rejected JCU’s case that there was never a conflict between its EA and Code commitments: JCU’s submission depends upon drawing a distinction between what is said and how it is said. But such a distinction may not exist. The content of what is said often depends upon how it is said…

On this point the High Court view accords with that of the dissenting Full Federal Court judge in 2020: There will be a conflict between JCU’s twin commitments under (the EA) where a staff member exercises intellectual freedom and, at the same time, is alleged to have breached the standards set out in the Code of Conduct. In some circumstances this may be inevitable…

Photo: Ethan Doyle White. Source: Wikimedia

On this fundamental point, then, Ridd had been right all along – despite the repeated assertions of JCU executives, and threats of dismissal if he failed to conform. By the end, JCU’s notice of termination letters (see Notes below) would accuse Ridd of misrepresenting its handling of the complaints about his expert commentary; and thus breaching the Code further.

Meanwhile, in its intellectual freedom clauses the EA did set limits. It required respect for others’ (lawful) rights, and ruled out conduct such as bullying or intimidation. But it didn’t require respect as such, or call for staff to be collegial:

All staff have the 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. These rights are linked to the responsibilities of staff to support JCU as a place of independent learning and thought where ideas may be put forward and opinion expressed freely.

So why did Ridd’s case fail in the High Court? As University of Melbourne law professor Adrienne Stone put it in The Age: The answer is complex but, in short, Ridd was sanctioned not only for his disrespect of colleagues but also for violating confidentiality obligations applicable to the disciplinary proceedings against him. These obligations, the Court held, did not limit his academic freedom…

This aspect raises a further Catch-22. As the Institute for Public Affairs’ Matthew Lesh put it in The Spectator: In particular, the Court concluded that Ridd should have followed JCU’s confidentiality directions. This is a tad problematic. It would have been impossible for Ridd to raise funds to fight the university if he did not break the confidentiality directions. It’s a Catch-22: go public to oppose a university disciplinary process and you can justifiably get fired… 

The point is echoed by University of Queensland law professor James Allen, in The Spectator. And writing in the Sydney Law Review in 2021 before the High Court decision, Adrienne Stone also points out that confidentiality directions can be used unreasonably: …the way confidentiality directions were relied upon to escalate this dispute is of concern. If a university action against a researcher is contrary to academic freedom, then academic freedom itself requires that researchers are free to point this out…

In the wake of Ridd’s dismissal in 2018, the NTEU’s Michael McNally argued similarly that in principle, imposing confidentiality on the censure was wrong: University management’s claims that Ridd was required to keep the matter confidential, even though he disagreed with the findings, are bordering on the Orwellian…

However, as well as accepting that confidentiality must generally apply during disciplinary processes, the court accepted a third basis for JCU’s sanctions. Sifting through Ridd’s office emails, JCU found dismissive comments in personal exchanges with some of his supporters about the allegations, and what he saw as the wider politics of the matter. For example, that he’d offended some sensitive but powerful and ruthless egos. And that rather than debate the case, they just resort to threats and complaints. And that universities were Orwellian towards those with the wrong ideas while pretending to value free debate. Along with the Sky News comments, these were deemed part of Ridd’s serious misconduct in the Final Censure. Like the Full Federal Court (but not the Federal Circuit Court), the High Court didn’t accept Ridd’s case that academic freedom covered comments that were not within an area of his academic competence. As University of Queensland public policy professor Katharine Gelber put it in The Guardian, the High Court distinguished between academic freedom on the one hand, and broad free speech on the other.

In sum, the High Court found that only some of Ridd’s alleged misconduct fell squarely within his academic freedom rights. The great irony is that most of the remaining conduct arose from his increasingly public dispute with JCU about what those rights were. And, relatedly, from what he saw as the injustice of JCU’s ongoing enforcement of its overly restrictive view of those rights – which the High Court would confirm, in part.

To compound the irony, when accepting JCU’s case and ruling in its favour in 2020, the Full Federal Court agreed with the 2019 finding that JCU had applied disciplinary action to trivial breaches of the Code. Strictly enforced, the Code offered scope for even an informal aside in an otherwise private email exchange to be deemed misconduct. (After Ridd’s dismissal, news of the email search had a chilling effect at JCU, as other staff stopped using their office email accounts.)

In a Sky News interview after JCU’s 2020 court win, Ridd said: One of the things which I was fired for … was that in an email I said to a student that I thought that universities were “Orwellian” because they pretended to value free speech but they don’t. And they read that email and said: “You’re not allowed to say that”…

George Orwell, The Freedom of the Press (unused preface to Animal Farm, 1945) Image: Wikimedia

By the time of the decision to dismiss Ridd, JCU executives had examined his personal emails and public statements in detail, for signs of disrespect toward anyone concerned, or the disciplinary process itself; and for signs of confidentiality breaches. Meanwhile Ridd had gone public about the injustice (as he saw it) of a process where JCU executives were the “accuser, jury and judge“.

In all three courts Ridd argued that the EA’s intellectual freedom clauses protected all that he had said, including criticisms of JCU’s disciplinary process. He didn’t argue for reasonable exceptions on other grounds to some of what JCU deemed misconduct. The High Court suggested that this all or nothing stance worked against his chances in court. It outlined four classes of (mis)conduct at issue. To paraphrase (see Notes): (1) expert criticisms in Ridd’s own field; (2) criticisms beyond his field; (3) criticisms of JCU decisions or procedures other than via internal processes; (4) disclosures related to the disciplinary process that JCU deemed confidential. In the High Court’s view of the EA only the first class was covered by academic freedom protections. (As an aside, I suspect that philosophers, for example, may struggle with the view that university managers can draw clear lines on what is within or beyond their field.)

Meanwhile, JCU’s long list of misconduct allegations included Ridd’s disclosures and/or criticisms of the fact that he’d been facing a disciplinary process, censured, and/or threatened with dismissal. By the end, almost no slight was deemed too slight to add to the case for the prosecution. For example, after his Final Censure in November 2017, the heading For your amusement – on an email to a student attaching a media report about his legal challenge – was deemed misconduct. The 2019 and 2020 courts had both criticised JCU for using trifling or trivial instances to bolster its case for sanctions. For its part, the High Court found it curious that Ridd could have drawn on that finding to make a stronger case, but didn’t:

It may be, for example, that some of the information revealed by Dr Ridd, and said to be confidential, was in the public domain and thus its disclosure by Dr Ridd could not have amounted to misconduct, still less serious misconduct. Nor was any issue raised about whether conduct of Dr Ridd was serious misconduct on the basis that, as the majority of the Full Court concluded, some instances “were undoubtedly trivial”. The Full Court considered this stance of Dr Ridd to be “inexplicable”. But Dr Ridd chose not to contest any of the findings of serious misconduct other than on the basis that he was protected … The same stance was taken in this Court…

University sector critics and free speech advocates were scathing about this aspect of the matter. After the 2019 court findings, columnist Janet Albrechtsen argued in The Australian that JCU had weaponised its Code:

trawling through Ridd’s correspondence in a distinctly Orwellian manner … Actions and words parsed and censured … Rather than starting from the principle of intellectual freedom … JCU used its lengthy and loquacious code of conduct to restrain Ridd … The enforcers chose censure and sacking over debate…

After the High Court ruling, columnist Henry Ergas also questioned the extent to which confidentiality should apply, in The Australian:

It is … questionable whether the issue of the breaches of confidentiality can be so neatly severed from the exercise of intellectual freedom. After all, as the dissenting judge in the Federal Court appeal noted, the confidentiality provisions JCU imposed on Ridd were disproportionate to the point of being Kafkaesque, amounting to a punishment in themselves for Ridd’s exercise of his rights and potentially constraining his ability to rebut the charges he faced…

For its part, JCU maintains that its support for academic freedom has been clear all along. A JCU statement reported by the ABC last month put it this way:

Today the High Court unanimously dismissed the appeal brought by Dr Ridd in relation to the termination of his employment from James Cook University … The Full Federal Court found that the University did not breach the Fair Work Act nor the enterprise agreement in terminating his employment. The majority of the Full Federal Court also found that Dr Ridd’s termination of employment had nothing to do with academic freedom. Today the High Court confirmed that the termination of Dr Ridd’s employment had nothing to do with academic freedom. The High Court in its judgement confirms: “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 High Court decision finally determines the legal proceedings first initiated by Dr Ridd in 2017 … 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…

To the extent that this implies that Ridd’s academic freedom rights had been respected, it is tempting to suggest that those who authorised the statement should (as Ridd might say) check their facts before they spin their story. While JCU’s statement does not refer to it, the High Court finding is explicit: 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 … is not consistent with the proper interpretation … of the Enterprise Agreement. Dr Ridd should not have been given the 2016 Censure.

Also explicit is the High Court finding on the primary 2017 complaint. At the time JCU had advised Ridd that his remarks were likely to be deemed serious misconduct. But the Court found that: In the absence of any assertion that his remarks amounted to harassment, vilification, bullying, or intimidation, or that they were defamatory or not honestly held, the remarks were protected by (Ridd’s) intellectual freedom in (the EA)…

The August 2017 allegation was that Ridd had repeated his 2016 offence and also failed to follow a reasonable direction in 2016 not to do so. At that point, facing the prospect of dismissal, Ridd engaged lawyers to call on JCU to drop its charge of serious misconduct or face litigation. Meanwhile JCU, concerned by media reports indicating that Ridd had disclosed the new disciplinary action, widened its investigation to sift through his emails for further Code breaches, and engaged its own lawyers to respond.

While Ridd’s court cases didn’t get his job back, the implications of the High Court findings are replete with irony, in at least six ways.

First, had JCU upheld Ridd’s right to academic freedom in its handling of the primary 2016 and 2017 complaints, the dispute and dismissal would not have arisen. In turn the whole sorry saga, at once tragic and farcical, would not have been replayed year after year in the media and the courts. As University of Queensland law professor James Allan put it in The Spectator following the High Court decision:

in a counter-factual world the university, properly acting in 2016, would never have charged Ridd and found him guilty; would have had next to nothing to charge him with in 2017; and hence there would have been next to nothing to breach confidentiality about…

The High Court finding confirms the initial Federal Circuit Court finding in 2019, that the 2016 Censure (with its directive to be collegial and respectful in future) was unlawful. While this was overturned by the Full Federal Court majority in 2020, the High Court indirectly reaffirmed what the dissenting judge had argued at that time: First, it must be determined whether the staff member was genuinely engaged in an exercise of intellectual freedom … Second … whether the staff member may have breached the Code of Conduct … Third … whether there is a conflict between the particular exercise of intellectual freedom identified and the particular requirement of the Code of Conduct … such that prosecuting the disciplinary proceedings will be inconsistent with JCU’s obligation to protect and promote intellectual freedom … If it is, the exercise of intellectual freedom prevails and JCU cannot complete disciplinary proceedings for Misconduct or Serious Misconduct.

The second irony is that JCU executives kept reminding Ridd that the Code obliged him to uphold JCU’s reputation. They did this mainly by insisting that he keep all details of the 2017 disciplinary process confidential – including the fact that he’d been censured in 2016.

In the Final Censure in November 2017 the Senior Deputy Vice-Chancellor directed Ridd to do three things: refrain from further uncollegial criticism, keep the censure itself confidential, and (in what may be a first for an Australian university) not say or do anything that directly or indirectly trivialises, satirises or parodies the University taking disciplinary action against you.

The 7-page letter (see Notes) concluded with a stern warning: I need you to understand that if the University becomes aware of any further incidents involving the same or similar conduct or any conduct that does not meet the standards expected by the University, you may face further disciplinary action, including termination of your employment. I confirm that the disciplinary process and all matters relating thereto (including but not limited to this censure), remain strictly confidential and that you are directed not to discuss or disclose there matters to any person, including the media or in any public forum...

Yet by this time the existence of the 2016 censure, the 2017 disciplinary process and what Ridd had said on Sky News had been public knowledge for months. One of Ridd’s personal connections (former University of Canberra vice-chancellor Don Aitkin) contacted him in late August to offer support. In reply, Ridd suggested that he write to the VC, Sandra Harding. When Aitkin did, this was seen as interference by Ridd in the disciplinary process, and thus further evidence of misconduct.

The High Court accepted that JCU had the right (as the 2020 Federal Court majority put it) to cast a cloak of confidentiality over its 2017 process; and that academic freedom didn’t cover breaches under the EA. But as noted, the High Court also found it a curiosity that Ridd’s defence didn’t contend that, with so much general information already in the public domain, disclosing or discussing this with supporters entailed no breach.

To this we can add that, as the dissenting Full Federal Court judge argued in 2020, there are reasonable exceptions to any such rule. JCU directed Ridd to refrain from disclosing details (such as who had made the allegations). But he was also directed not to disclose or discuss the existence of the 2017 process itself, or the earlier 2016 censure. Here the dissenting judge drew a line:

In my opinion, the (EA confidentiality) clause does not prevent the person accused from disclosing the existence of the process … To construe the clause otherwise would reveal a Kafkaesque scenario of a person secretly accused and secretly found guilty of a disciplinary offence but unable to reveal, under threat of further secret charges being brought, that he or she had ever been charged and found guilty.  

From Franz Kafka’s Der Prozess (1925)
Image source: https://www.wort-ensemble.com/zeigt/franz-kafka-der-proces/

As noted, the Final Censure in November 2017 directed Ridd to refrain from further uncollegial criticism, keep the censure itself confidential, and not to trivialise the sanctions he faced.

But by that point Ridd had commenced his legal action, lodging papers with the Federal Circuit Court. And (aware of this prospect from September), JCU had added a long list of further allegations in October. These would help to build JCU’s serious misconduct case, and to justify its Final Censure in court proceedings.

The third irony is that neither party wanted the matter to end in court. A scan of the stream of exchanges between Ridd, JCU executives or their respective lawyers suggests a series of Sliding Doors moments. As tensions rose and the conflict escalated, each side took steps that must have seemed to make sense at the time, as reactions to the other’s opposing action. But only from the viewpoint of the parallel universities they inhabited – outwardly the same, but on crucial points sharply at odds. Like philosophers doggedly disputing the merits of Plato’s Republic, each would contend for a system of rules and norms and inferences whose underlying premises existed as much in their heads as in reality.

Here policy ambiguity also played its part. Aside from the EA/Code interplay, the High Court notes that the Code itself included: “numerous overlapping undertakings, signalled by the language of “we will”: value academic freedom, and enquire, examine, criticise and challenge in the collegial and academic spirit of the search for knowledge … behave in a way that upholds the integrity and good reputation of the University … act within the limits of our authority … respect the rights of others … etc.

All told, the Code included 52 items plus a 10-page Explanatory Statement. The term respect appeared in a dozen formulations, with various meanings; and in general, many Code phrases were open to interpretation.

The fourth irony is this. In a university with a clear EA commitment to promote intellectual freedom with very few constraints beyond legal limits, there’s another way to meet the Code’s call to “value academic freedom” and “examine, criticise and challenge in the collegial and academic spirit” etc. This would be for professors to refrain from making vexatious allegations about colleagues with opposing views, simply on the basis that these fail to respect their own views and/or reputations. And for university leaders to summon their inner Voltaire, and encourage complainants to engage directly with colleagues whose views they reject, and debate the substantive matter, on its merits.

On this reading of the Code, concerns about Ridd’s views should have been addressed openly in the academic arena, rather than behind closed doors in the administrative domain. Many commentators appear to concur (see Further Reading, below). As Gay Alcorn put it in The Guardian after Ridd’s dismissal in 2018:

Would the university have behaved in the same heavy-handed way – trawling through emails for evidence, insisting a staff member it has disciplined may not discuss it – if the academic had been a mainstream climate scientist calling into question the work of a sceptic in a colourful and, at times, disparaging way? And why shouldn’t academics say impolite things, if that is what they honestly believe? … For all the university’s sensitivity … you have to wonder if it has damaged its own standing with its strident calls for “collegiality” and its repeated insistence that Ridd stay mute. The other way would be for academics not to complain about Ridd’s impolite turn of phrase, but to reject his arguments, loudly and with evidence … And for the university to put up with their troublesome academic and to not be obsessed with process and its own self importance…

Indeed, a case for pride and prejudice might be made. While unaware of any recent survey of the civility quotient of the claims and counterclaims that flow among scholars in universities – what Cardinal Newman referred to in 1852 as the collision of mind with mind – my guess is that on hotly contested topics at least – and particularly if informal and personal exchanges were included in such a survey – many Australian professors would not consistently meet the civility standards of (say) the hero of a Jane Austen novel. And yet, when one considers JCU’s forensic critique of Ridd’s respect and/or courtesy lapses, and of his apparent lack of contrition or remorse for such inappropriate conduct, it may be inferred that under JCU’s Code, nothing short of a Knightley or Darcy level of civility would suffice.

Images of Mr Darcy from Jane Austen’s Pride and Prejudice (1813)

The fifth irony is that such highly aspirational standards, once officially invoked and enforced, can cut both ways. A hypothetical case might be made that, in their unsparingly forensic efforts to pinpoint, prevent and/or punish Ridd’s pattern of misconduct, JCU executives themselves engaged in misconduct under their own Code, on up to 10 counts. For example, by sanctioning a professor for exercising his academic freedom without proper justification; formally directing him not to exercise his rights to their full extent; dismissing his concerns about the validity of their decisions; and threatening further, more serious sanctions if he failed to comply with what the High Court would confirm were unreasonably restrictive directives.

In light of the findings of all three courts, let’s consider the following thought experiment

In the wake of Ridd’s dismissal, staff union objections and media coverage of the dispute, other JCU professors raise complaints about how JCU has handled the matter, with its governing Council. Their starting point is JCU’s EA obligations, which seem clear: 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.

Their prima facie case is that JCU executives involved in managing complaints about Ridd engaged in a pattern of misconduct that breached the EA and/or Code in ways serious enough to warrant formal sanctions, including possible dismissal, if proven. Taking an unsparingly forensic approach, our hypothetical complainants allege that at one point or another, in ways large or small, one or more JCU executives had:

(a) failed to respect others’ rights (as per the Code and the EA, by way of improper sanctions and directives designed to limit Ridd’s academic freedom in response to the two primary complaints);

(b) failed to comply with all relevant statutory requirements (by failing to uphold the EA’s intellectual freedom protections when managing complaints raised against Ridd);

(c) failed to act within the limits of their authority (as per the Code, by misapplying its provisions to impose sanctions and/or issue respect directives without proper justification);

(d) failed to value academic freedom (as per the Code, to the extent required by JCU’s EA obligations)

(d) failed to ensure fairness and natural justice is afforded to all (as per the Code, by refusing Ridd’s calls to reconsider unjustified sanctions and directives; and by applying unreasonable standards of respect etc. to trivial remarks in informal and personal emails in order to construe these as misconduct);

(e) failed to stand up for the rights of others (as per the Code, by failing to question the reasonableness of the actions taken to build JCU’s case for serious misconduct, such as its reliance on trivial remarks in personal emails;

(f) failed to refrain from bullying and/or intimidation (as per the EA and the Code, by imposing or threatening unjustified sanctions on Ridd, including a threat of dismissal for failing to follow unlawful and/or unreasonable directives regarding respect etc. when professing his views in his own field of expertise);

(g) failed to have regard for the dignity and needs of others (as per the Code, by unjustified sanctions and/or directives, such as an unreasonable demand to refrain from directly or indirectly trivialising the disputed disciplinary action in informal and personal emails);

(h) failed to behave in a way that upholds the integrity and/or good reputation of the University (by breaching EA rights, misapplying Code provisions, and falsely accusing Ridd of dishonesty and/or lack of integrity insofar as he had continued to profess his honest belief that his academic freedom had been restricted);

(i) failing to take responsibility for mistakes (by failing to fully and frankly acknowledge all relevant findings of the High Court in relation to the 2016 and 2017 censures, in an official University response which implied that the High Court found that JCU’s actions against Ridd had nothing to do with academic freedom).

(j) failing to behave with intellectual honesty (by failing to fully and frankly acknowledge the High Court findings and their implications for JCU governance, policy and administration; and by representing JCU’s handling of Ridd’s academic freedom rights in ways that were (to adopt the words of one DVC) untrue, misleading and/or not full and frank).

The sixth irony is that JCU’s exhaustive efforts to restrain Ridd from professing views that might affect JCU’s reputation were, arguably, far more damaging, once exposed in the media and the courts, than the likely effect of any of the comments he had made on Sky News or in personal emails to supporters. Higher education commentator Tim Dodd highlighted the damage in The Australian in 2019, after the first court ruling. In May 2018, shortly after JCU’s vice-chancellor had terminated Ridd, former university vice-chancellor Don Aitkin wrote about the case in The Australian:

Peter Ridd … was sacked last week by James Cook University … When he drew attention to what he saw as exaggerations in the way fellow academics at his university were describing the condition of the Great Barrier Reef, he was “disciplined” by JCU and was told that if he did it again, he would be charged with serious misconduct. He wrote to me about this matter, and that email was seen by the university to be a further sign of misconduct. Ridd decided he had enough and launched a legal suit against the university, claiming senior staff had been biased and had not acted fairly … Not many professors in Australian universities have ever been fired, and sacking should require some extraordinary misbehaviour on the part of the professor. Ridd is not accepting his dismissal quietly and has raised a good deal of money very quickly through crowd-funding. There is going to be a court case … Early on, I wrote to the JCU vice-chancellor to suggest she move to settle the issues quickly and away from the court. JCU’s reputation can only worsen as the trial continues…

In its statement on the High Court ruling (see Notes) JCU affirms that its commitment to academic freedom is evidenced by the fact that its policies are now fully aligned with the French Model Code (outlined in the 2019 French Review). Since the Model Code is designed to prevent the kind of policy uncertainty illustrated by the Ridd case, this is welcome news. However, it’s worth recalling the Review finding that, while greater policy clarity was needed across the university sector, it would never suffice unless supported by institutional culture:

A culture powerfully predisposed to the exercise of freedom of speech and academic freedom is ultimately a more effective protection than the most tightly drawn rule. A culture not so predisposed will undermine the most emphatic statement of principles. The recitation of a generally expressed commitment to freedom of speech and academic freedom does not of itself provide strong evidence of the existence of such a culture…

So much hot water. So much hot air. A chilly climate for academic freedom. And what may be deemed a Voltaire drought in their support for free exchange in a university context. These are the risks universities face with vaguely-worded Codes, if academic communities and administrative leaders allow them to be weaponised.

Afterword

This is an independent perspective on the Ridd controversy, based on information in the public domain. There are no personal or professional links to any party in the matter.

The view put here is informed by a longstanding research interest in the history and role of universities, university leadership and management, academic and administrative professionalism, and higher education policy and governance. In recent years I have undertaken policy and process reviews in the university sector, including to support institutional policy responses to the 2019 French Review.

A seventh irony may emerge in the wake of analyses such as the one set out here. While this is an extraordinary case, the court findings are likely to have implications for policy and practice in other universities. But the politics of debates on such topics in the Australian context may prevent leaders and experts within universities from declaring their own views openly, or engaging in public debate about cases such as this one.

If so, in turn this implies an eighth irony. The Ridd dismissal was a trigger events for calls on the Federal government to impose some version of the University of Chicago principles (which are designed to ensure the freedom of all members of the University community “to discuss any problem that presents itself”). The government commissioned the French Review in 2018 to consider what might be done. At the time many in the sector argued that neither the Review nor a Chicago approach were needed. The Review findings didn’t support those assumptions.

Notes

The sequence of events from 2016 to 2018 is set out in the Full Federal Court ruling in 2020, as follows:

  1. This is an appeal from a decision of the Federal Circuit Court (…)

THE FACTS

  1. Professor Ridd was employed by JCU for a period of twenty-seven years (…)
  2. On 2 May 2018, JCU terminated Professor Ridd’s employment for serious misconduct. The termination followed two prior censures, one on 29 April 2016, and one, described as the Final Censure, on 21 November 2017. The censures related to findings by JCU that Professor Ridd had engaged in misconduct contrary to the Code of Conduct in that he had not expressed a professional opinion in a manner consistent with his obligations under the Code of Conduct. This included by failing to act “in the collegial and academic spirit” but had denigrated a colleague (including by failing to treat a fellow staff member “with respect and courtesy”), the ARC Centre of Excellence in Coral Reef Studies (ARC Centre of Excellence), and the Great Barrier Reef Marine Park Authority (GBRMPA), that he had denigrated the University in a manner inconsistent with his obligations under the Code of Conduct, and that he had breached directions to maintain confidentiality. JCU considered that Professor Ridd’s conduct subsequent to the Final Censure amounted to serious misconduct, demonstrating a pattern of conduct intentionally designed to damage the University’s reputation and destructive of the necessary trust and confidence for the continuation of the employment relationship.
  3. The pattern of conduct to which JCU referred in its decision to terminate Professor Ridd’s employment commenced on 16 December 2015 when Professor Ridd sent an email to a journalist suggesting that reports produced by GBRMPA and the ARC Centre of Excellence were unreliable. Professor Ridd stated in the email that those two organisations should “check their facts before they spin their story” and that if the organisations were asked about the issue, his “guess is that they will both wiggle and squirm because they actually know that these pictures are likely to be telling a misleading story – and they will smell a trap”. JCU found that, in using the language he did in the relevant email, Professor Ridd’s conduct amounted to “Misconduct” as defined in the Enterprise Agreement in that he did not act in a collegial way, did not respect the right of others, did not display responsibility in respecting his colleagues’ reputations, in breach of the Code of Conduct (the First Finding). On 29 April 2016, Professor Ridd was issued with a formal censure (the 2016 Censure) and was told that, “In future it is an expectation that in maintaining your right to make public comment in a professional capacity in an academic field in which you are recognised, it must be in a collegial manner that upholds the University and individuals (sic) respect” (the First Speech Direction).
  4. Following the publication of an essay in a book entitled Climate Change – The Facts 2017, Professor Ridd was invited to appear on the television show “Jones & Co” to participate in an interview with Alan Jones and Peta Credlin (the Sky Interview). This he did on 1 August 2017. Following the Sky Interview, a complaint was made by another professor at JCU to the effect that Professor Ridd was “trashing JCU’s relationship with ARC, GBRMPA and AIMS again”, those organisations being the ones mentioned in the email the subject of the First Finding and referred to in the Sky Interview (the reference to “AIMS” is a reference to the Australian Institute of Marine Science).
  5. On 24 August 2017, Professor Ridd was notified by JCU that it considered the Sky Interview to be a prima facie case of serious misconduct and wrote, “[a]s per clause 54.1.5 the confidentiality for all parties in the management of this process is highly important, and I trust that you will consider your obligations professionally” (the First Confidentiality Direction).
  6. On 27 August 2017, JCU again wrote to Professor Ridd, after he had sought clarification of the First Confidentiality Direction in the following terms: “[y]ou should not discuss any aspect of the serious misconduct process whilst it is ongoing – except with an appropriate representative” and “you are expected to maintain your confidentiality obligations to the University” (the Second Confidentiality Direction).
  7. On 19 September 2017, JCU wrote to Professor Ridd informing him that it had made a prima facie finding of misconduct in relation to the Sky Interview. The letter directed Professor Ridd to keep the details of the allegations, and all matters relating thereto (including the fact of the 2016 Censure) strictly confidential. He was instructed not to disclose or discuss the matter with the media or in in any other public forum, including social media. He was told that he was permitted to discuss the matter with his immediate family, a support person, his union, professional advisors or JCU’s Employee Assistance Provider – provided he could assure himself that they would maintain the same confidentiality (the Third Confidentiality Direction).
  8. After an internal search of Professor Ridd’s University email account, JCU wrote to Professor Ridd on 23 October 2017 requesting a response to allegations that he had breached the Code of Conduct by denigrating JCU and a particular colleague, being insubordinate, interfering in the disciplinary process in relation to the First Finding, and breaching the First and Second Confidentiality Directions.
  9. Professor Ridd commenced the proceedings in the Federal Circuit Court on 20 November 2017.
  10. On 21 November 2017, Professor Ridd was informed by letter that JCU considered that he had engaged in serious misconduct and that the appropriate disciplinary action was the Final Censure. The conduct found to amount to serious breach of the Code of Conduct and therefore serious misconduct was:
    • failing to act “in the collegial and academic spirit of the search for knowledge, understanding and truth” and failing to “treat fellow staff members, students and members of the public with honesty, respect and courtesy” when commenting during the Sky Interview to the effect that we can “no longer trust” scientific research published by AIMS or the ARC Centre of Excellence, and implying or insinuating that scientists who work for those organisations are “emotionally attached” to the reef and their scientific research is “not objective” (the Second Finding);
    • failing to “behave in a way that upholds the integrity and good reputation of the University” and in breaching the Information Communication Technology Acceptable Use Policy of the University when expressing views in emails from his University email account to external recipients, including recipients at other universities, that: (i) “I am not sure I have any influence on the outcome”, being whether he was likely to be terminated (the Third Finding); (ii) “As usual, I have offended some powerful organisations who don’t like being challenged, and rather than debate the case, they just resort to threats and complaints” (the Fourth Finding); (iii) “Needless to say I have certainly offended some sensitive but powerful and ruthless egos” (the Sixth Finding); and (iv) “In my view our 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” (the Seventh Finding).
    • failing to treat a colleague “with respect and courtesy” by denigrating that colleague and communicating about him in a disrespectful manner when responding to a student by email about that colleague’s participation in a conference as a keynote speaker in terms, “You wonder why he is there. It is not like he has any clue about the weather. He will give the normal doom science about the GBR” (the Eighth Finding); and
    • engaging in conduct designed to interfere with the disciplinary process and in breach of the Second and Third Confidentiality Directions by soliciting a letter of support to the Vice Chancellor through a group email to more than 30 people (the Fifth Finding).
  1. That letter also expressed the “expectation” that the disciplinary process and all matters relating thereto (including the Final Censure) would remain strictly confidential and directed Professor Ridd not to discuss or disclose the matter with or to any person, including the media or in any public forum, with the same exceptions identified in previous directions as to confidentiality (the Fourth Confidentiality Direction).
  2. The letter of 21 November 2017 contained two further directions. The first was that Professor Ridd would refrain “from criticising other persons or organisations in a manner that is inconsistent with the collegial and academic spirit of the search for knowledge, understanding and truth” (the Second Speech Direction). The second directed him to “not make any comment or engage in any conduct that directly or indirectly trivialises, satirises or parodies the University taking disciplinary action against you” (the No Satire Direction).
  3. On 22 November 2017, an article was published in The Australian newspaper detailing the application that had been filed in the Federal Circuit Court by Professor Ridd. Subsequently, Professor Ridd published a suite of confidential documents relating to the two disciplinary processes on a WordPress website which included republication of the comments found to be denigrating of his colleague. He also set up a Go Fund Me website. On 23 November 2017, Professor Ridd sent a copy of the article in The Australian to a student with the subject line “For your amusement”. JCU held this to be a breach of the No Satire Direction (the Fourteenth Finding).
  4. On 8 February 2018, JCU wrote to Professor Ridd to express concerns about the apparent breaches of confidentiality directions evidenced by the media article, the websites and a flyer that had been distributed on the JCU campus. JCU directed Professor Ridd to maintain strict confidentiality in relation to all matters relating to the disciplinary process, drawing his attention to cl 54.1.5 of the Enterprise Agreement (the Fifth Confidentiality Direction).
  5. On 13 April 2018, JCU informed Professor Ridd that it had determined that he had engaged in serious misconduct, including serious breaches of the Code of Conduct and behaviour that was contrary to the interests of the University. JCU found that in making a series of comments to The Australian, and on the WordPress and Go Fund Me websites, and in a flyer distributed on campus, Professor Ridd promoted discussion and perpetrated the view, within and external to the University, that the University took disciplinary action against him because he had a different scientific view to the University or its stakeholders. It found that, contrary to the Code of Conduct, there was no proper basis for the comments, the comments were likely to have damaged, and had the potential to further damage, the reputation of the University, and his actions were in deliberate disregard of his obligations to the University (the Twelfth Finding). The disclosure of documents to The Australian and the publication of the documents on the WordPress website were found to be in breach of the four previous Confidentiality Directions and, in relation to the latter, republication of the denigrating comments about his colleague (the Ninth and Tenth Findings).
  6. Further, JCU found that Professor Ridd had no proper basis for making comments to the effect that he was denied procedural fairness and the comments had damaged the reputation of the University and were in deliberate disregard of the obligations owed to the University (the Thirteenth Finding).
  7. JCU found further that Professor Ridd had published comments regarding the disciplinary process that were untrue, misleading, and/or not full and frank and in so doing, failed to act with honesty and integrity in breach of the Code of Conduct. Professor Ridd had made the comment that he had been instructed not to talk anybody about the allegations, even to his wife. The statement was true, in that he had been refused permission to mention the allegations to his wife in an email dated 27 August 2017. He was, however, subsequently given permission to do so on 19 September 2017. This was not mentioned in the published comments (the Fifteenth Finding).
  8. Professor Ridd was also found to have breached to Code of Conduct by failing to “treat fellow staff members… with honesty, respect and courtesy” when replying to an email from his Dean in a manner that was said to be “threatening, insubordinate, and disrespectful”. The email included comments that, “I think you should consider your actions in all this and which side you want to be remembered as being part of. So far it does not look encouraging but I live in hope” and described the Dean’s email as “offensive” and as “[not living] up to public expectations of decent behaviour” (the Sixteenth Finding).
  9. Professor Ridd was also found to have breached the Code of Conduct by preferring his own interests and those of the Institute of Public Affairs (IPA) above the interest of the University in failing to disclose that the IPA had paid for various travel expenses and was providing assistance with his legal costs to challenge the 2017 disciplinary processes in circumstances where the IPA endorses, and has promoted, Professor Ridd’s comments (the Seventeenth Finding).
  10. Professor Ridd was also found to have deliberately and repeatedly breached Confidentiality Directions by: providing a folder of confidential documents to another Professor (who did not look at them); disclosing information to the author of an article in the Cairns News; and causing a flyer to be distributed on JCU’s campus which disclosed the outcome of the 2017 disciplinary process and said, inter alia, that he had “no intention of accepting the final censure or complying with the order to remain silent and would rather be fired than accept the situation” (the Eleventh Finding).
  11. On 2 May 2018, Professor Ridd’s employment with JCU was terminated.

Ridd’s disagreement with JCU (excerpts from Ridd’s 8-page website summary)

On 28 August 2017, JCU alleged that Ridd’s comments about the trustworthiness of work of these institutions was not collegial and that he had committed serious academic misconduct for which he could be dismissed. JCU also instructed Ridd not to talk to anybody about the existence of their allegations, or the details of the allegations. When Ridd asked if he could mention them to his wife, he was not given permission. Ridd ignored the direction not to talk about the existence of the allegation and significant media reaction ensued. Ridd was prepared to the apparently inevitable outcome that he would be fired especially as JCU’s senior administration are effectively the accuser, jury and judge on the matter. In a similarly case in 2016 JCU had already found him guilty of academic misconduct and censured him … Perhaps due to indications that JCU’s case would fail if challenged in court, and because JCU was annoyed that he had not kept quiet, in October 2017 JCU hit Ridd with a new 128 page document listing details of 25 further allegations of misconduct. These new allegations were compiled by reading all of Ridd’s JCU email correspondence. Most of the new allegations related to email exchanges with his students, friends, wife and colleagues about the existence of the allegations. They also claimed that Ridd had denigrated JCU in these emails and had no respect for the disciplinary process being mounted against him … Regretfully, in November, Ridd felt he had no choice but to commence legal action in the Federal Court and told The Australian he hoped the court action would “draw attention to the quality assurance problems in science and the obligation of universities in general to genuinely foster debate, argument and the clash of ideas” … The legal case will be fought with reference to the JCU “enterprise bargaining agreement” and may be determined by obscure legal technicalities … However, in the court of public opinion, Ridd believes he cannot lose. In Ridd’s opinions, JCU’s actions will be seen to be unreasonable in any publicity associated with the case…

Excerpts from selected letters from JCU to Professor Ridd

Senior Deputy Vice-Chancellor letter 29 April 2016 (excerpts from a 2-page letter)

Formal Censure

…You breached Principle 1 of the Code of Conduct by going to the media in your professional capacity in a way that was not collegial and did not respect the rights of others … You breached Principle 1 of the Code of Conduct by not displaying responsibility in respecting the reputations of other colleagues. Your actions were seen to be directed at individuals … calling into question their professional and/or academic integrity. These actions also breached Principle 2 of the Code of Conduct, which did not uphold the integrity and good reputation of the University. As a result, I am issuing you with a formal censure. Should there be a further breach during your employment at James Cook University, it could lead to further disciplinary action which could amount to serious misconduct. In future it is an expectation that in maintaining your right to make public comment … in an academic field in which you are recognised, it must be in a collegial manner that upholds the University and individuals respect…

HR Director letter 1 September 2017 (excerpts from a 1-page letter)

Re: Misconduct

Dear Peter Thank you for your email … For the avoidance of doubt, the allegations relating to the (Sky News) interview and transcript amounts to a repeat of a similar offence following a formal censure, and that in addition you have failed to follow a reasonable instruction in Professor Cocklin’s (2016) censure letter in terms of meeting future expectations. As such the allegations amount to serious misconduct…

HR Director letter 19 September 2017 (excerpts from a 1-page letter)

Allegations of Serious Misconduct

I refer to the letter I provided to you on 24 August 2017 seeking your response to allegations of serious misconduct regarding comments you are alleged to have made during an interview with Sky News Live on 1 August 2017…The purpose of this letter is to confirm that I am not satisfied that there has been no serious misconduct … As outlined in my letter of 7 September 2017, these matters are confidential. I confirm that you are directed to keep the details of the allegations, and all matters relating thereto (including, but not limited to, the formal censure you received on 29 April 2016), strictly confidential. You must not disclose or discuss these matters with the media or in any other public form, including social  media…

Senior Deputy Vice-Chancellor letter 21 November 2017 (excerpts from a 7-page letter after Ridd’s responses to Allegations Letter of 24 August and Further Allegations letter of 23 October)

Employment with James Cook University – Final Censure

The University has had the opportunity to review all evidence including your Response, Further Response and Third Response … I have reviewed all evidence and taken into account all relevant matters, including your Responses and matters raised in correspondence from your solicitors … I have determined that there has been serious misconduct … You have previously received a formal censure dated 29 April 2016 for similar conduct, including communicating in a manner that was not collegial, respectful of your colleagues and did not uphold the integrity and good reputation of the University, giving rise to breaches of the Code of Conduct. Given the pattern of conduct, I have considered termination of your employment. However I have taken into account your length of employment and contributions to the University, particularly in relation to teaching, and I have decided that these factors mitigate against termination, and as an alternative to termination, subject to your ongoing compliance with the Code of Conduct I have determined to provide you with a final censure. Moving forward, it is the University’s expectations that you: (a) along with all other staff members, will act consistently with the Code of Conduct, including refraining from criticising other persons or organisations in a manner that is inconsistent with the collegial and academic spirit of the search for knowledge, understanding and truth; (b) will keep all matters relating to the disciplinary process and this censure strictly confidential; (c) will not make any comments or engage in any conduct that directly or indirectly trivialises, satirises or parodies the University taking disciplinary action against you. I need you to understand that if the University becomes aware of any further incidents involving the same or similar conduct or any conduct that does not meet the standards expected by the University, you may face further disciplinary action, including termination of your employment. I confirm that the disciplinary process and all matters relating thereto (including but not limited to this censure), remain strictly confidential and that you are directed not to discuss or disclose these matters to any person, including the media or in any public forum…

Deputy Vice-Chancellor letter 13 April 2018 (excerpts from a 19-page letter that recommends dismissal after Ridd’s response to a February 2018 Allegations letter; to which Ridd may respond before the VC decision)

James Cook University – Notice of Termination

“…Academic freedom Your Response raises claims that the disciplinary process is about academic freedom and that, by taking disciplinary steps under the Enterprise Agreement, the University is infringing on your right to academic freedom. Your claims on this issue misrepresent the facts. The Final Censure made it clear to you why you were disciplined. That is, you were disciplined for behaviour that was contrary to your obligations under the Code of Conduct and/or the best interests of the University. As was explained in the Final Censure, you are entitled to express your scientific views on matters relating to the Great Barrier Reef. Academic freedom does not, however, override your obligations under the Code of Conduct to be collegial nor justify criticism of your colleagues, the University, or key affiliates of the University, in a manner that is inconsistent with the Code, or which denigrates the University or its key affiliates. You are well aware that this is the case. When you were censured in 2016, it was made clear to you that you are entitled to make public comments in your professional, expert or individual capacity in an academic field in which you are recognised, and reinforced that you were to do so in a way that is collegial and upholds the reputation of the University and your colleagues. In light of that situation, I am satisfied that you were well aware of your obligations under the Code of Conduct when exercising academic freedom, and the circumstances in which you may be disciplined should you exercise academic freedom in a manner inconsistent with your obligations as an employee of the University. Further, I am satisfied that at no time have you been prevented from exercising a right to academic freedom. Nothing in the confidentiality directions or the censures you have been given previously, prevents you from exercising a right to academic freedom under clause 14 of the Enterprise Agreement and consistent with the Code of Conduct … Your continued representation that your right to academic freedom has been ‘infringed’ is clearly contrary to those facts, and a deliberate misrepresentation of what has actually occurred.

Allegation 1…2…3…Allegation 4 concerns several publications by you regarding the nature of the disciplinary proceedings that do not uphold the integrity and good reputation of the University by continuing to perpetuate the view (both internally and outside the University) that the University has taken disciplinary action against you because you have expressed a scientific view, different to the view of the University or its stakeholders. The assertion in your Response that the University is treating you in a manner inconsistent with your right to express scientific views that are contrary to views that may be held by the University or its stakeholders is grossly inconsistent with the Allegations Letter, which makes it clear that the University is not concerned that you have expressed a scientific view that is different to the view of the University or its stakeholders, rather, the University is concerned that you have expressed your views in a manner that is inconsistent with the professional standards expected by the University and reflected in the Code of Conduct. You are well aware of the University’s concerns in that regard, having been put on notice of them in the 2016 censure and the Final Censure … The University is satisfied that you have continued to perpetuate the view that the University has taken disciplinary proceedings against you because you have expressed a particular scientific view, including but not limited to making the following comments in relation to the disciplinary process … As outlined above, the University has made it clear to you that it is not concerned that you have expressed a scientific view that is different to the view of the University or its stakeholders, rather, the University is concerned that you have expressed your views in a manner that is inconsistent with the professional standards expected by the University and reflected in the Code of Conduct. I am satisfied therefore that there was no reasonable basis for you to make each of the comments the subject of Allegation 4, and that your comments are a deliberate misrepresentation of what has occurred. I note that your Response does not otherwise engage with Allegation 4, particularly the allegation that your comments have damaged the reputation of the University, and have the potential to further damage the University’s reputation. You were given an opportunity to consider that part of the allegation in your Response. I am satisfied that the comments are likely to have damaged, and have the potential to further damage, the University’s reputation, by reason of the fact that… (a)…(b) your comments deliberately misrepresent the nature of the 2016 and 2017 Disciplinary Processes…(c)…(d)… In such circumstances, the University is satisfied that by promoting to external parties the view that the University has commenced a disciplinary process against you to prevent you from expressing your scientific views, your conduct is contrary to the best interests of the University and the requirement in the Code of Conduct to “behave in a way that upholds the integrity and good reputation of the University” and has been engaged in, in a way to attempt to interfere with confidentiality of the disciplinary process.

Allegation 5…6 I am satisfied that the 23 November 2017 email trivialises, satirises or parodies the University taking disciplinary action against you. Your email clearly communicates that you find the 2017 Disciplinary Process “amusing” and at least indirectly seeks to trivialise, satirise or parody the 2017 Disciplinary Process. It was sent to a student of the University from your University email account. That conduct is contrary to the Final Censure which outlines the University’s expectations that you will not directly or indirectly trivialise, satirise or parody the University taking disciplinary action against you. Your conduct is contrary to the best interests of the University and the requirement in the Code of Conduct to “behave in a way that upholds the integrity and good reputation of the University”…

Allegation 7… you have published to outsiders comments that are untrue, misleading and/or not full and frank, and therefore failed to act with integrity and honesty contrary to the Code of Conduct…

Allegation 8 In response to concerns about the content of your emails of 28 November 2017 to the Dean, your Response asserts that the Dean’s email to you “overstepped the mark and sought to impose obligations on [you] that [you] [were] not subject to” … The Dean’s email of 28 November 2017 outlined the expectations of you in relation to your presentation at the Sydney Institute. Those expectations were consistent with the conduct expected of you as a University employee, including the obligation in the Code of Conduct to uphold the integrity and good reputation of the University. Contrary to what your Response asserts, there was nothing inappropriate in the Dean doing so, particularly where you had recently received a Final Censure for communicating in a manner inconsistent with the Code of Conduct and breaching your obligations with respect to confidentiality. Your Response relies on the University not alleging that the Dean was, in fact, threatened, in answer to this allegation. Your email … salutation is disrespectful. The language used in the email is intimidating, disrespectful and divisive and directed not only to the Head of Physical Sciences and Dean but also the University management, in the manner of addressing it to “whoever” … Comments such as “I think you should consider your actions in all this and which side you want to be remembered as being part of. So far it does not look encouraging but I live in hope”, and stating that the Dean’s email is “offensive” and does “not live up to public expectations of decent behaviour” are, by any reasonable measure, threatening and disrespectful, particularly when used in discussions with your supervisor … in circumstances where you had been previously censured for conduct contrary to the Code of Conduct, including failing to respect others, you know what is expected of you in communications with your colleagues and that should be with respect and consistent with the Code of Conduct. On 7 March 2018, you wrote to the Dean, over three months after your email, and after the Allegations Letter and the Response. While you acknowledge in your email to the Dean that you could have communicated better, you do not acknowledge the inappropriateness of the communication. Rather, you assert that it was nothing more than a “frank exchange” between educated, professional adults and appear to assert that because the Dean may not in fact feel threatened, there is nothing inappropriate about the email exchange … You have not apologised to the Dean and demonstrate no contrition for your communication, merely stating you acknowledged it could have been worded better. Therefore, I do not accept that your late email of 7 March 2018, nor your Response, excuse your behaviour in sending the email in the first place. The University is therefore satisfied that you have breached the Code of Conduct, including the requirement to “treat fellow staff members, students and members of the public with honesty, respect and courtesy, and have regard for the dignity and needs of others”…

Allegation 9…Termination of employment …You have previously received a formal censure dated 29 April 2016 for similar conduct, including communicating in a manner that was not collegial, respectful of your colleagues and did not uphold the integrity and good reputation of the University, giving rise to breaches of the Code of Conduct. You also received the Final Censure on 21 November 2017 for engaging in a pattern of similar conduct, including breaching confidentiality and denigrating the University, its employees and stakeholders contrary to your obligations under the Code of Conduct and/or in the best interests of the University. Given the pattern of conduct, I consider termination of your employment is an appropriate sanction…

Vice-Chancellor letter 2 May 2018 (excerpts from a 14-page letter of dismissal)

Employment with James Cook University – Final determination on termination of your employment

“…As you are aware, the DVC found that you have engaged in serious misconduct, including denigrating the University and its employees, and not acting in the best interests of the University. That conduct is a serious breach of the Code … In deciding that termination is an appropriate sanction, I have taken into account that: (a) you are aware of your obligations as an employee of the University; (b) as a senior employee of the University, you are expected to model appropriate behaviour; (c) you have deliberately engaged in a pattern of conduct that misrepresents the nature and conduct of the disciplinary process through publications and the media; (d) you have repeatedly and knowingly breached your obligations to maintain the confidentiality of disciplinary processes; (e) you have repeatedly and wilfully denigrated the University and your colleagues, and in doing so damaged the reputation of the University; (f) individually and collectively, your behaviour is destructive of the necessary trust and confidence for the continuation of the employment relationship; (g) you have been censured twice previously for conduct in breach of the Code of Conduct and/or the best interests of the University, including the breaches of confidentiality and denigrating your colleagues, the University and its key affiliates; (h) you have shown no contrition or remorse for your behaviour, particularly the repeated denigration of your colleague Professor … and the impact of your behaviour on the University …

(Your) Submissions do not provide any compelling explanation as to why termination of your employment should not be imposed … Further, the Submissions fail to identify contrition, remorse, awareness, understanding or acceptance of the impact of conduct that you have engaged in on the University and others, and fails to demonstrate a reasonable basis for the University to have confidence that you would comply with the Code of Conduct and terms applicable for all employees moving forward … I do not accept your Submission that “if (you are) ultimately found to be wrong about (your) interpretation of the EA and the validity of the relevant directions given to (you), (you) will, of course, abide by that decision and conduct (yourself) henceforth in accordance that determination”… The University’s concern has been, and remains, that you are required to express your views in a manner consistent with your obligations as an employee of the University, including the Code of Conduct. That is, whatever scientific view you express, you are required to maintain professional standards and comply with lawful and reasonable directions given to you by the University … Your lack of insight into, or acceptance of, the inappropriateness of your behaviour, is below the standard expected of you as a senior employee of the University …

You have been twice censured for similar conduct … Those previous censures are relevant to a consideration of whether termination of employment is an appropriate sanction … In particular, the 2016 Censure and the Final Censure made you aware: (a) of the expectations of you when exercising a right to academic freedom, including your obligation to act in accordance with the Code of Conduct; (b) of the expectations of you with respect to the maintenance of confidentiality regarding disciplinary processes; (c) that denigrating your colleagues would be considered in breach of the Code of Conduct, including the obligation to treat others with respect and courtesy; (d) that the University was not concerned that you are expressing a scientific view different to the view of the University or its stakeholders, rather that you have expressed those views in a way inconsistent with your obligations under the Code… (e) that the University took disciplinary matters seriously and that if it became aware of further instances of serious misconduct, your employment could be terminated…”

JCU response to High Court ruling, 13 October 2021 (reported by the ABC)

Statement from a spokesperson from James Cook University

Today the High Court unanimously dismissed the appeal brought by Dr Ridd in relation to the termination of his employment from James Cook University. Dr Ridd appealed the unanimous Full Federal Court decision of 22 July 2020 to the High Court. The Full Federal Court found that the University did not breach the Fair Work Act nor the enterprise agreement in terminating his employment. The majority of the Full Federal Court also found that Dr Ridd’s termination of employment had nothing to do with academic freedom. Today the High Court confirmed that the termination of Dr Ridd’s employment had nothing to do with academic freedom. The High Court in its judgement confirms: “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 High Court decision finally determines the legal proceedings first initiated by Dr Ridd in 2017. Given the passage of the litigation, Dr Ridd’s proceedings relate to the interpretation of clauses in the University’s 2013 enterprise agreement, which were altered in the replacement agreement by the University in 2018. 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.

High Court judgement, October 2021 (excerpts from a 30-page judgement)

Selected findings on key points

…The actions of Dr Ridd that formed the basis for JCU’s findings, directions, and censures, and ultimately its termination of Dr Ridd’s employment … can be broadly divided into four categories. First, there were comments relating to matters in the area of Dr Ridd’s area of academic competence which criticised JCU or various institutions or unnamed “scientists” or particular people. Secondly, there were comments, which were not related to matters in the area of Dr Ridd’s academic competence, that were critical of either particular institutions or particular people. Thirdly, there were comments which were critical of decisions or decision-making processes of JCU but which did not follow applicable processes for raising those concerns. Fourthly, there were comments made or information disclosed by Dr Ridd that was said by JCU to concern confidential matters. Dr Ridd did not seek to distinguish between these categories. On his all-or-nothing submission, the intellectual freedom protected by cl 14 of the Enterprise Agreement covered all of the above categories.

Dr Ridd did not dispute that each and every instance of his alleged actions had occurred. One curiosity about the manner in which his case has been presented at first instance and on both appeals is that he also did not dispute that each and every instance of his actions was properly characterised by JCU as misconduct or as serious misconduct. It may be, for example, that some of the information revealed by Dr Ridd, and said to be confidential, was in the public domain and thus its disclosure by Dr Ridd could not have amounted to misconduct, still less serious misconduct. Nor was any issue raised about whether conduct of Dr Ridd was serious misconduct on the basis that, as the majority of the Full Court concluded, some instances “were undoubtedly trivial”. The Full Court considered this stance of Dr Ridd to be “inexplicable”. But Dr Ridd chose not to contest any of the findings of serious misconduct other than on the basis that he was protected by cl 14. The same stance was taken in this Court. It suffices to proceed on the same assumption, that each instance of alleged conduct by Dr Ridd would be misconduct or serious misconduct subject to Dr Ridd’s submissions about the operation of cll 14 and 54.1.5 of the Enterprise Agreement…

…Two issues of interpretation arose on this appeal. The first issue was the manner in which the Enterprise Agreement resolved conflicts between, on the one hand, the intellectual freedom of JCU staff members to debate, to criticise, and to express unpopular and controversial views protected by cl 14 and, on the other hand, the undertakings in the Code of Conduct, not replicated in cl 14, concerning treatment of others with respect and courtesy. The second issue was the manner in which the Enterprise Agreement resolved conflicts between, on the one hand, the intellectual freedom provided by cl 14 to express disagreement with decisions of JCU and to express disagreement with the processes used to make those decisions and, on the other hand, the confidentiality requirements concerning University disciplinary processes…

…This appeal was conducted by both parties on an all-or-nothing basis. JCU’s position was that all of the findings against Dr Ridd were justified. Dr Ridd’s position was that none of the findings made against him was justified … JCU’s submission that the Code of Conduct can operate consistently with cl 14 of the Enterprise Agreement encounters insurmountable obstacles in its practical operation. JCU’s submission depends upon drawing a distinction between what is said and how it is said. But such a distinction may not exist … contrary to Dr Ridd’s submission, cl 14 cannot provide any protection against breaches of the Code of Conduct which involve disagreement with JCU decisions or JCU processes where the expression of disagreement involves a failure to respect the confidentiality of the parties involved…

…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. Dr Ridd should not have been given the 2016 Censure. The Final Censure did not, however, rely exclusively upon the remarks made by Dr Ridd in the Sky Interview. Rather, it also relied upon six other findings … which together with the remarks made by Dr Ridd in the Sky Interview were found to be serious misconduct for the purposes of cl 54.3.6 of the Enterprise Agreement. Five of these six findings concerned remarks in emails sent by Dr Ridd from his JCU email account to external recipients 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. And Dr Ridd made no submissions that could have justified these remarks otherwise falling within the intellectual freedom protected by cl 14…

…One basis for the Final Censure, which relied upon the extracts above from the Sky Interview, was that Dr Ridd’s intellectual freedom did not justify the “criticism of key stakeholders of the University” in a manner which was not “in the collegial and academic spirit of the search for knowledge, understanding and truth” or “respectful and courteous” … that part of the reasoning of the Senior Deputy Vice-Chancellor in the 21 November 2017 letter concerning the manner in which Dr Ridd had expressed his criticisms was inconsistent with the proper interpretation of … the Enterprise Agreement … given the manner in which Dr Ridd’s case has been presented, one part only, not all, of the basis for the Final Censure was unjustified … At about the same time as, or subsequent to, the Final Censure, Dr Ridd engaged in further conduct which was the basis for findings made by the Deputy Vice-Chancellor of JCU … the Deputy Vice-Chancellor made 18 findings of serious misconduct against Dr Ridd … None of these findings was in respect of expressions of opinions or ideas within Dr Ridd’s academic expertise. And Dr Ridd did not suggest that any of these findings were in respect of criticism of JCU’s decisions or its processes “through applicable processes”…

…The 2016 Censure given to Dr Ridd was … not justified. That conclusion does not affect the outcome of this appeal. The only conduct that falls within the intellectual freedom in cl 14 is the expression of opinion within an area of academic expertise and the criticism of JCU decisions and processes through applicable processes which include obligations of confidentiality. 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 cl 14. 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. Since this appeal was run on an all-or-nothing basis, the appeal should be dismissed…

Further reading

Graham Lloyd, June 2016, Reef whistleblower hung out to dry

Graham Lloyd, August 2017, Fears uni may sack marine scientist over comments on reef health

Graham Lloyd, November 2017, James Cook University slapdown of Great Barrier Reef critic heads to court

Graham Lloyd, January 2018, Reef row scientist Peter Ridd snubs uni gag order

Don Aitkin, May 2018, Don’t you dare upset the money-making engine

Peter Ridd, May 2018, Ridd’s disagreement with JCU: some background

Peter Ridd, May 2018 Vice-Chancellor letter May 2018

Peter Ridd, May 2018 Deputy Vice-Chancellor letter April 2018

Peter Ridd, May 2018, Ridd’s disagreement with JCU: some background

Peter Ridd, May 2018, Misconduct papers (includes April 2016 First Censure, August 2017 Allegations, October 2017 Further Allegations, November 2017 Final Censure)

Gay Alcorn, June 2018, Peter Ridd’s sacking pushes the limit of academic freedom

Graham Readfearn, June 2018, Academic Peter Ridd not sacked for his climate views, says university

Peter McCutcheon, June 2018, James Cook University staff avoid using emails after climate change sceptic sacked

Michael McNally, June 2018, NTEU statement calling for the reinstatement of Professor Peter Ridd

Michael McNally, July 2018, Ridd sacking a blow to academic freedom

Katharine Gelber, November 2018, There’s no need for the ‘Chicago Principles’ in Australian universities to protect freedom of speech

Charlie Peel, March 2019, I had no choice: why sacked JCU professor Peter Ridd went public

Tim Dodd, April 2019, The Ridd affair is a debacle for JCU and its council should look into it

Janet Albrechtsen, April 2019, That’s code for ‘conduct yourself as we tell you’

Greg Craven, July 2020, Free speech a character test for vice-chancellors

Geoff Sharrock, September 2020, Peter Ridd and the French Review connection

Nick Bonyhady, May 2021, How a fight about the Great Barrier Reef has become a free speech test

Tim Dodd, May 2021, Australian Association of University Professors backs Peter Ridd

George Williams, June 2021, As Peter Ridd case shows, pursuit of truth not always a civil affair

Geoff Sharrock, July 2021, Book review: Open Minds (and the French Review connection)

Adrienne Stone, August 2021, The Meaning of Academic Freedom: The Significance of Ridd v James Cook University

Adrienne Stone, October 2021, Academic freedom recognised but sacked scientist fails in bid to be reinstated

Paul Karp, October 2021, Peter Ridd loses ‘all or nothing’ high court appeal over sacking from James Cook University

Katharine Gelber, October 2021, As the Ridd case reminds us, academic freedom is not the same as free speech

George Williams, October 2021, Peter Ridd’s lost battle a key win in war for academic freedom

Lisa Visentin and Nick Bonyhady, October 2021, Tudge flags further free speech measures as sacked climate sceptic loses High Court case

Bill Swannie, October 2021, High Court lends weight to academic freedom despite Peter Ridd losing appeal against dismissal

Matthew Lesh, October 2021, A Catch-22 defeated Peter Ridd – but there’s still hope for academic freedom

Tim Dodd, October 2021, James Cook University won Peter Ridd case but does not emerge unblemished

James Allan, October 2021, They Ridd us of that turbulent academic

John Ross, October 2021, Ridd judgement leaves academic freedom ‘too ambigous’

Henry Ergas, October 2021, Thanks to Ridd, our freedoms are safer

Augusto Zimmerman, October 2021, It’s official: dissident academics are fair game

Peter Ridd, October 2021, Lift the heavy hand smothering academic dissent

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