BY JOSHUA FORREST AND ADRIENNE STONE

Introduction 

On 13 October 2021, the High Court handed down its decision in Ridd v James Cook University [2021] HCA 32.  

The decision concludes a bitter, long-running and unedifying legal dispute between James Cook University (JCU) and a former professor, Peter Ridd. It also usefully clarifies the status, content and scope of the principle of academic freedom at Australian law.  

The dispute raised the principle of academic freedom because it was sparked by a conventional exercise of academic freedom – an academic’s criticism of academic research. Ridd, while a professor of physics at JCU, publicly criticised the research of colleagues at a research centre at JCU (the Centre) and at a federal government partner institution (the Authority). In Ridd’s view, the research was flawed because it overstated the effect of climate change on the Great Barrier Reef. His criticism prompted complaints from academics. The complaints set in train disciplinary processes. These processes then came to encompass a wide range of disciplinary matters, extending beyond Ridd’s criticism of his colleagues to include Ridd’s defiant response to the disciplinary processes themselves. JCU terminated Ridd’s employment for ‘serious misconduct’ in 2018.  

Ridd mounted a legal challenge, claiming that JCU had contravened his right to ‘intellectual freedom’ contained in JCU’s Enterprise Agreement. He succeeded at trial: Ridd v James Cook University [2019] FCCA 997. By majority, the Full Federal Court allowed JCU’s appeal: James Cook University v Ridd (2020) 278 FCR 566. After granting Ridd special leave to appeal, the High Court unanimously, and in a concise joint judgment, dismissed the appeal.   

Because the High Court, in effect, finally rejected Ridd’s challenge, the result may initially appear to be a setback for the principle of academic freedom. Along these lines, the decision has been described as an endorsement of the culture of censorship suffocating Australian life’. In a message to his donors, Ridd described the decision as effectively kill[ing] freedom of speech’.  

While Ridd and his supporters are naturally disappointed that his appeal was dismissed, this criticism misses the mark. The result reflects the unusual circumstances of the case, and Ridd’s litigation strategy. And despite the result, the decision is, in the main, greatly reassuring. Far from a setback for academic freedom in universities, the decision is a welcome endorsement of its importance.  

The principle of academic freedom 

The principle of academic freedom is fundamental to the very concept of a university, because it underwrites a university’s capacity to freely pursue and disseminate knowledge. For that reason, it is strongly protected in the great university systems of the world. It has an ancient provenance and comprises internationally well-recognised elements, including: 

  • The freedom of academics to freely research, critically inquire and teach, including by way of public commentary; and 
  • The involvement of academics in university governance, whether through formal participation in governance or, equally, through the freedom to criticise university governance.  

While the way in which these elements are implemented necessarily varies, the elements themselves are well-recognised in Australia. They were recognised recently, for example, in the 2019 Report of the Independent Review of Freedom of Speech in Australian Higher Education Providers (French Report)Relevantly to the Ridd dispute, the importance of the pursuit of knowledge is recognised in the law which established James Cook University: James Cook University Act 1997 (Qld) s 5. 

To be clear, recognition of the principle of academic freedom does not mean that academia is a ‘free-for-all.’ On no view does academic freedom displace the fundamental discipline of academic method. But academic method recognises that all research is provisional, and properly subject to testing, criticism and elaboration. Academic freedom, by facilitating these processes, is a freedom which reinforces rather than displaces academic discipline.  

The origins of the dispute 

Against that background, we can revisit the facts of the dispute. 

One of the most dispiriting aspects of the case is that the disciplinary processes which culminated in Ridd’s termination were sparked by Ridd’s criticism of his colleagues’ research – an entirely conventional exercise of his academic freedom. Ridd’s criticisms were uncomfortably public, pointed and unpleasant, but they formed part of a dispute between scientists about science. As the High Court has now recognised, at least these criticisms should never have been the subject of disciplinary action.  

In late 2015, Ridd emailed a journalist, criticising reports prepared by the Centre and the Authority. In his email, Ridd said that the two bodies should ‘check their facts’ and predicted that, if pressed, they would ‘wiggle and squirm’ because they knew they were telling a ‘misleading story’. Unfortunately for Ridd, the journalist forwarded Ridd’s email to the Head of the Centre seeking comment. The Head of the Centre, in turn, complained to JCU’s Senior Deputy Vice Chancellor. A disciplinary process commenced.  

JCU found that Ridd’s email constituted ‘misconduct’. It considered his criticisms insufficiently ‘collegial’ and respectful of the reputations of his colleagues. JCU issued him a formal censure (the first censure) and directed him to ensure that any future exercise of his ‘right’ to comment on academic matters was ‘collegial’ and maintained respect in JCU and its researchers (the collegiality direction).   

Undeterred by the first censure and the collegiality direction, in a 2017 television interview, Ridd again suggested that research from the two bodies was flawed and untrustworthy. He described their researchers as ‘emotionally attached’ to the Great Barrier Reef and lacking objectivity. The interview came to the attention of the Head of the Centre, who this time complained to the Vice Chancellor as well as the Senior Deputy Vice Chancellor. Disciplinary processes were revived. This time, ‘serious misconduct’ rather than ‘misconduct’ was alleged.  

JCU determined that Ridd had engaged in ‘serious misconduct’ and issued another censure (the final censure). The ‘serious misconduct’ finding depended on seven adverse disciplinary findings. Critically, Ridd’s comments in the television interview accounted for only one finding. The remaining six findings related to emails located in Ridd’s JCU email account, which JCU searched as part of its disciplinary investigation. JCU found that one email denigrated a colleague to a student, and another interfered with the disciplinary process by soliciting a letter of support on Ridd’s behalf. JCU found that a number of emails failed to uphold the ‘integrity and reputation’ of JCU by disparaging its commitment to academic freedom. For example, one email said that ‘our whole University system pretends to value free debate, but in fact it crushes it whenever the “wrong” ideas are spoken. They are truly … Orwellian in nature’.  

Following the final censure, Ridd was directed on several occasions (and not for the first time) to observe confidentiality in respect of the disciplinary processes (the confidentiality directions). This direction imposed a broad obligation not to discuss or disclose the ‘disciplinary process and all matters relating thereto’, including the censure itself. Much more unusually, he was also directed to refrain from any conduct that ‘directly or indirectly trivialises, satirises or parodies’ JCU’s disciplinary action against him (the no satire direction).  

The dispute continued to escalate. Between the final censure and his termination, JCU made a further nine adverse disciplinary findings against Ridd. These included multiple breaches of JCU’s Code of Conduct and the confidentiality directions, as well as a breach of the no satire direction.  

Some of the conduct the subject of these disciplinary findings was troublingly trivial. For example, Ridd’s breach of the no satire direction was to forward a newspaper article about his dispute with JCU to a student with the subject line ‘For your amusement’. And one of the breaches of Ridd’s obligation of honesty was to publish a statement that he had been instructed by the JCU not to discuss with his wife the allegations against him, which was strictly correct (but neglected to mention that he had later been given permission to discuss some matters with her).  

Other breaches, however, were more substantial. Most significantly, Ridd repeatedly breached the confidentiality directions, including by self-publishing confidential documents online, providing other confidential material to a newspaper, and discussing confidential matters on flyers he distributed on campus.  

An ‘all-or-nothing’ case 

Ridd’s termination was preceded by (and based on) 17 adverse disciplinary findings. Only two of these related to the criticisms of his colleagues’ research which triggered the disciplinary processes. The remaining 15 findings largely related to his criticisms of JCU and its disciplinary processes, criticisms which were often buttressed by reference to materials and documents that Ridd had been required to keep confidential.  

In framing his legal challenge, Ridd or his counsel made two important decisions. First, Ridd did not dispute that he had engaged in the conduct the subject of each of the adverse findings. Secondly, he accepted that the impugned conduct, however trivial, justified JCU’s findings of misconduct and serious misconduct (and in turn, his termination) unless that conduct could be shown to be the protected exercise of his ‘intellectual freedom’.  

In doing so, Ridd left himself an exceedingly narrow path to establishing that his termination was unlawful. As both the Full Federal Court and the High Court remarked, it appeared to be much more narrow than necessary. The Full Federal Court described Ridd’s approach as ‘inexplicable’ (at [23], [204]). The High Court described it as a ‘curiosity’ (at [9], [55]).  

As a result, Ridd’s case, as his counsel conceded, was an ‘all-or-nothing’ case. To succeed, Ridd needed to establish that ‘all, or almost all’ of the accepted 17 adverse findings were unlawful because they related to conduct which was a protected exercise of his ‘intellectual freedom’. Ridd succeeded before the Federal Circuit Court, which found that each of the 17 adverse findings were unlawful. But the position was reversed on appeal. The Full Federal Court found by majority that each of the adverse findings were lawful.  

The High Court’s decision, however, charted a middle position. The Court accepted that the two adverse findings which related to Ridd’s criticisms of his colleagues’ research were unlawful. Ridd’s comments in his 2015 email to the journalist, and his comments in the 2017 television interview, however discourteous, were a protected exercise of his ‘intellectual freedom’: see [5]–[6], [51]. But this was not enough to succeed in an ‘all-or-nothing’ case. Ridd could not establish that the remaining 15 findings were unlawful because these findings, in large part, related to conduct which was not a protected exercise of intellectual freedom. Instead, it involved the expression of ‘personal opinion and frustration’ (at [7]) and the contravention of confidentiality obligations legitimately applied to disciplinary processes (at [40]).  

As may be seen, rather than reflecting the Court paying insufficient attention to the principle of academic freedom, the outcome reflects that Ridd’s case was an imperfect vehicle for that principle. Ridd made two decisions which left him with an unduly (if not impossibly) narrow path to victory. First, by adopting a publicly combative approach to the disciplinary processes, and repeatedly breaching the confidentiality of those processes in doing so, he supplied JCU with possible bases for disciplinary sanction and termination that did not depend on his initial academic criticisms. Secondly, by making the unusual decision to run his case on an ‘all-or-nothing’ basis, he effectively conceded that those bases, provided that they did not infringe his ‘intellectual freedom’, were valid.   

An endorsement of the principle of academic freedom 

Although Ridd’s appeal was dismissed, he succeeded on the essential point of principle. The Court accepted Ridd’s submission that the exercise of the right to ‘intellectual freedom’ contained in the Enterprise Agreement need not conform to JCU’s Code of Conduct. That is, it need not be respectful, collegial or courteous to enjoy protection.  

A particularly encouraging aspect of this part of the decision was that the High Court accepted that the construction of the clause of the Enterprise Agreement guaranteeing ‘intellectual freedom’ was necessarily informed by the principle of academic freedom. The Court recognised that intellectual freedom: 

 is a concept with a long history, the core content of which has crystallised over the last century … On any view ‘intellectual freedom’ includes academic freedom and both apply to Dr Ridd as an academic member of University staff. 

Referring to the French Report, the Court referred to the two elements of the principle of academic freedom noted above: (a) critical and open debate and inquiry including in public fora; and (b) participation and discussion as to university governance (at [30]) and concluded that ‘however desirable courtesy and respect might be, the purpose of intellectual freedom must permit of expression that departs from … civil norms’ (at [33]). 

In this regard, the High Court’s decision was a welcome rejection of two aspects of the Full Federal Court decision.  

First, it contradicts the position of the Full Federal Court majority that the principle of academic freedom could not assist in construing the right to ‘intellectual freedom’. The majority had considered the principle of academic freedom to be distinct from the concept of ‘intellectual freedom’ and, in any case, insufficiently precise and uniform to be useful. That position was problematic and a differently constituted Full Federal Court in a later case sought to sidestep this aspect of the majority’s analysis: National Tertiary Education Industry Union v University of Sydney [2021] FCAFC 159 [16] (Allsop CJ) [249] (Jagot and Rangiah JJ). But as the High Court has now rightly recognised, the essential elements of the principles of academic freedom are well-recognised, and plainly found expression in JCU’s ‘intellectual freedom’ guarantee, which applied those familiar principles to academic and non academic staff.  

Secondly, it was a rejection of the position of the Full Federal Court majority that the guarantee of ‘intellectual freedom’ was confined by parallel obligations to treat colleagues with ‘respect and courtesy’. From an academic freedom standpoint, this position was a particular concern. Of course, many workplaces make demands of civility and courtesy of their staff. But in universities such demands are inapt and dangerous, at least if applied to academic discourse. As mentioned, it is essential that researchers can freely and vigorously disagree, even in ways that would be disrespectful in other contexts. It may, for example, be necessary to point out that another academic’s research is fundamentally misconceived, sloppy, disingenuous or even fraudulent. A civility standard therefore poses a risk to the freedom necessary for academic work. As one of us has written elsewhere: 

Passionate advocacy and strong critique can all too easily be mistaken for incivility, perhaps especially when used to express ideas that are challenging and unorthodox. Evidence and reason giving are the touchstones of academic discourse not civility. 

The High Court decision is an important affirmation that the responsibility of universities to advance knowledge demands a tolerance to challenge and disputation that goes beyond that of an ordinary workplace. 

A sting in the tail? 

Despite the full-throated endorsement of the principle of academic freedom, there remain some possible areas of concern.  

One concern is that the Court appeared to limit the exercise of intellectual freedom to an expression of an opinion within a relevant ‘field of competence’. On this basis, for example, the Court considered the emails JCU uncovered in Ridd’s JCU email account – including Ridd’s email describing the ‘whole university system’ as ‘Orwellian’, and pretending to value but instead ‘crushing’ free debate – were not a protected exercise of intellectual freedom. These emails, the Court said, were not protected because they expressed opinions outside of Ridd’s academic competence, and Ridd failed to argue that the opinions were otherwise an exercise of ‘intellectual freedom’ (at [52]).  

It would be a pity if these statements were taken as support for a narrow conception of academic freedom. We accept an academic’s field of expertise does place some limits on their academic freedom: a professor of law cannot claim – by virtue of academic freedom – to be entitled to research in physics (nor vice versa). But in many cases, the boundaries of academic disciplines are not easy to discern. Academic disciplines change over time and there is much academic interaction across them. Academic lawyers, for instance, draw on a wide range of disciplines (history, philosophy, literature, economics). They produce not only scholarly work but also public commentary on matters of public policy. This work goes beyond any narrow conception of their expertise as understanding the content of the law. Where do the limits of their expertise then lie? In any event, much of the most exciting research in any field involves academics extrapolating from the core of their disciplines to broader ideas. A narrow conception of fields of ‘competence’ or ‘expertise’ would serve as an unnecessary and undesirable ‘chill’ on academic work.  

In any event, this case should not be taken to be the last word on this aspect of academic freedom. On the facts of this case, there was no real question as to the limits of Professor Ridd’s expertise except in so far as he commented on non-scholarly matters relating to university governance. On this score, the reasoning is susceptible to another criticism. As the Court recognised, the principle of academic freedom which underlies ‘intellectual freedom’ protects not only debating and discussing research within particular academic fields, but also debating and discussing university governance, a matter relevant to all academics, irrespective of their academic field (at [30]). Ridd’s written and oral submissions to the Court expressly, and correctly, submitted that intellectual freedom has this second aspect, and therefore involves a degree of freedom to criticise one’s employer: see, eg, Ridd Written Submissions [37]. An aspect of this submission was that the opinions critical of JCU expressed in the emails were an exercise of this second aspect of intellectual freedom. It is therefore not at all clear that, as the Court suggested, Ridd failed to argue that these opinions were an exercise of intellectual freedom. 

Though it would not have changed the ultimate result, given the number of other disciplinary findings justifying termination, it would, in our view, have been better had the Court recognised that Ridd’s criticisms of JCU were, as much as his criticism of his colleagues’ research, an exercise of his academic – and intellectual – freedom.  

Another troubling aspect of the case is the prominent role played by JCU’s confidentiality directions. One way of summarising the Court’s decision is that Ridd’s termination was justified by his repeated failure to respect the confidentiality of disciplinary processes which should never have been commenced. There is a certain bitter irony in that outcome. It is also not hard to imagine that confidentiality directions could, in certain circumstances, be used oppressively to suppress legitimate criticism of a university. Confidentiality (and other workplace) directions must not become a proxy method of restricting academic freedom, and it may be necessary in future cases to chart the appropriate boundaries of such directions.  

But there were unrealised opportunities in the Ridd case to argue that some of his conduct was not affected by these directions. For instance, the JCU Enterprise Agreement recognises that ‘intellectual freedom’ is qualified by a requirement to observe applicable processes, which includes, the Court concluded, obligations of confidentiality.  But close attention to the terms of the relevant clause, cl 14.4, is warranted. It is not absolute. Instead, it provides that:  

JCU acknowledges the rights of staff to express disagreement with University decisions and with the processes used to make those decisions. Staff should seek to raise their concerns through applicable processes and give reasonable opportunity for such processes to be followed. 

(Emphasis added). 

Further possibilities were suggested by the Court itself (at [55]). The confidentiality provisions of the JCU Code of Conduct do not apply when the information disclosed is already in the public domain, a matter that Ridd might have relied upon in relation to some of his statements. He might also have argued that some of his actions (for instance suggesting that a supporter write to the Vice Chancellor) did not impair the confidentiality of the disciplinary process or reveal confidential information.  

But these possibilities were not exploited by Ridd. The Court simply rejected the blanket proposition that confidentiality directions could not be given by JCU, if the confidential matters, or the directions, fell within the scope of intellectual freedom.  

Thus, it should not be concluded that there are no limits on the use of such provisions. Ridd’s was simply not the appropriate case for consideration of those limits. There is a simple reason why that is so: he did not contest the validity of the directions on any basis other than that they infringed his intellectual freedom. The Court was bound to accept the restrictions were appropriate once his primary argument failed. It may, therefore, fall to a future litigant to argue the appropriate limits of a university’s power to require confidentiality consistently with a commitment to ‘intellectual freedom’.  

Conclusion 

Despite these qualifications, the High Court’s decision is timely and important. It recognises that universities are an extraordinary resource on which successful societies depend for their capacity to improve lives, advance knowledge and support democracy. It is vital to maintain the culture of free inquiry and debate that will allow them to continue their remarkable contribution to human flourishing. Just as importantly, at a time when misinformation abounds and public trust in so many institutions is declining, the society that is asked to fund tertiary institutions should know that their scholarly processes are up to the challenge. The recognition and reinforcement of the principle of academic freedom is, on both fronts, essential.  

Joshua Forrest is a Research Associate at the Centre for Comparative Constitutional Studies at Melbourne Law School. 

Adrienne Stone is Redmond Barry Distinguished Professor and Director of the Centre for Comparative Constitutional Studies at Melbourne Law School. 

Suggested citation: Joshua Forrest and Adrienne Stone, ‘The High Court’s defence of Academic Freedom in Ridd v JCU‘ on AUSPUBLAW (17 November 2021) <https://auspublaw.org/2021/11/the-high-courts-defence-of-academic-freedom-in-ridd-v-jcu>