Peter Ridd
Professor Peter Ridd (Image: Supplied)

History will record that Professor Peter Ridd, in his epic fight against James Cook University (JCU) for the cause of academic freedom, lost five-zip in the High Court of Australia last month. 

That’s unfortunate, because his case is potentially of far-reaching importance for reasons that have nothing to do with him.

Ridd is on the minority side of the scientific consensus on the effects of climate change on the Great Barrier Reef. He was censured twice and then sacked by JCU for numerous breaches of its code of conduct in relation to how he went about expressing his disagreement with other academics, his unhappiness with JCU’s disciplinary processes, and for breaching confidentiality obligations by sharing much of what was going on publicly.

Critically, Ridd did not contest any of the alleged breaches, despite the fact that — as the High Court noted — some were unsustainable. Because of this forensic choice made by him and his lawyers, presumably to ensure that his litigation would focus squarely on the point they wanted to make about academic freedom, he really did lose on a technicality.

That’s all now a footnote, along with what ended up being the substantive legal battle over the reconciling of the competing provisions of the JCU code of conduct and the enterprise agreement between it and its employees.

There’s only one point of interest from all this, and it’s a big one. The full Federal Court, which had heard JCU’s appeal from the trial judge’s original $1.2 million verdict in Ridd’s favour, had decided the case for JCU strictly on the contractual arguments, deciding that the more general issue of whether there is such a thing in the law as academic or intellectual freedom was not relevant.

The High Court took a quite different view, one which is surprising given its largely dismissive attitude to assertions of human rights in recent years. The court did not find, as a definitive proposition, that there is a recognised legal principle of academic freedom which can be asserted against contractual or other constraints. It didn’t go that far. However, it did give a very strong hint that it thinks there’s something there that needs protecting.

The question came up somewhat incidentally in the context of the court looking for reasons to support its view that the promise of intellectual freedom in Ridd’s enterprise agreement trumped the code of conduct in the sense that it protected his freedom to the full extent of its own terms. 

The key difference was that, while the code of conduct prohibited disrespectful or discourteous expressions of disagreement with others in the context of academic debate, the enterprise agreement did not. The result, the court said, was that Ridd was free to be rude to or about his colleagues, provided he didn’t go too far into harassment, bullying, defamation or anything else unlawful.

This allowed a judicial excursion into the history of academic freedom, described as “a defining characteristic of universities and like institutions”. It is a “developed concept” which essentially allows critical and open public debate to flourish.

This, the court said, requires us to conclude that, “however desirable courtesy and respect might be, the purpose of intellectual freedom must permit of expression that departs from those civil norms”. The judges approvingly quoted the American legal philosopher Ronald Dworkin in support of the idea that intellectual freedom necessitates that those engaged in academic debate must give up on expecting or demanding respect, in the name of the “culture of independence” and “the ethical individualism that culture protects”.

High-falutin’ stuff! I nearly fell off my chair, these arcane philosophical principles being wielded by a court which usually prides itself on not getting carried away on the wings of intellectualism.

Not that I disagree, and not just because the High Court is, by definition, right. The concept of academic or intellectual freedom is a vital one, if you believe that universities have a unique role to play in a secular, liberal society. If inquiry, debate and invention are not fostered, protected and celebrated there, then where? And for that to happen to best effect, the freedom for its participants to speak up and out, including in ways that lose friends and make enemies, is critical.

Therefore it is a big deal that the High Court has planted a tentative flag in the sand for this particular sub-brand of freedom. It has not declared it sacred, but it has pointed to future disputes where it might be prepared to say with more directness that universities are constrained by the freedom in their ability to muzzle their own academics. I hope so, anyway.

I wish the court was similarly willing to declare the existence of other freedoms that are less abstruse and exclusive, more practical and universal. But I’ll take this as a win for the people, at least those with degrees.