In the case of Peter Ridd, we’ll soon learn whether academic freedom matters
If the High Court grants Peter Ridd special leave to appeal, the court’s final determination is likely to reverberate across the country.
[…] Everyone agrees on one thing: judges on the US Supreme Court can alter the country in profound ways.
By the way, two new judges were appointed to Australia’s High Court this week, although few will know their names. For the record, Simon Steward from Melbourne and Jacqueline Gleeson from Sydney, both former Federal Court judges and both in their early 50s, will serve long stints on our most influential court until they reach the mandatory retirement age of 70. Steward will join the court in December, and Gleeson, the daughter of former chief justice Murray Gleeson, will take up her seat in March next year.
Both judges will be watched closely by those who understand that the High Court can fundamentally change the direction of our country, too. Eighty per cent of its cases are mundane, having little impact on the country. The other 20 cent are the Big Bang cases. Through the intersection of law, politics and values, they can cause seismic shifts throughout the country.
Will Steward and Gleeson become roaming judicial adventurers making decisions like philosopher kings rather than humble judges? There are no guarantees. After all, the court’s most recent appointment, and disappointment, is Justice James Edelman. Part of the recent 4-3 majority decision in Love v The Commonwealth, along with fellow justices Michelle Gordon, Geoffrey Nettle and Virginia Bell, Edelman dreamt up a legally bogus racial privilege to exclude two men from the normal application of our non-citizens laws.
Chief Justice Susan Kiefel’s scathing rebuke of the majority should be inscribed somewhere along the hallowed halls of the High Court for the newcomers.
“Implications are not devised by the judiciary,” Kiefel said, because they are “antithetical to the judicial function since they involve an appeal to the personal philosophy or preferences of judges”.
The departure of Nettle and Bell means that, without the support from the new appointees, Edelman and Gordon might be relegated to minority dissents the next time they choose to cook up propositions to suit their preferred outcomes, and pronounce them as the law of the land.
All eyes will be on the newest judges especially if the High Court decides to hear the case involving physics professor Peter Ridd. In August, Ridd lodged a 13-page application for special leave to appeal a 2018 Federal Court decision that upheld his sacking by James Cook University. On Thursday, the High Court agreed to hear oral arguments about special leave in February next year. This is interesting. The vast majority of applications are rejected “on the papers” — in other words without an oral hearing.
Next, the High Court will decide if the Ridd case is sufficiently important to warrant judgment from the nation’s highest court. There is, as former High Court judge Michael Kirby once said, no point pretending that it is a logical or scientific process. In other words, it’s down to whether the court finds a matter interesting. The test is subjective, their decision unappealable.
For the punters, the raw odds are about one in 10: last year, of a total of 445 special leave applications, the court granted leave in 52 cases.
Insiders give Ridd a 50-50 chance of making it over the next hurdle. The case, after all, is not just about the “substantial injustice” of JCU’s termination of Ridd’s career, claiming he acted in an uncollegial manner in breach of the university’s vaguely drafted code of conduct when he raised questions about the quality of climate research at JCU.
If the High Court grants Ridd special leave to appeal, the court’s final determination is likely to reverberate across the country. Many universities have intellectual freedom clauses in their enterprise agreements with academics. And most universities have ambiguously drafted codes of conduct that could be used to restrict these same intellectual freedom clauses. Where does that leave academic freedom in this country?
Ridd’s case is being led by Melbourne QC Stuart Wood, while JCU has Bret Walker SC in its corner. Ridd’s claim for special leave to appeal includes a powerful observation from legal scholar Ronald Dworkin that “any invasion of academic freedom is not only harmful in itself, but also makes future invasions more likely”.
There is another harm to society. If JCU’s infringement of academic freedom is allowed to stand, it will have a chilling effect on other academics. We will never know what research escapes rigorous testing by academics who do not want to jeopardise their jobs.
The High Court is being asked to rule on the core mission of a university: is it, first and foremost, to defend academic freedom and further research, to seek the truth by challenging orthodoxies that can become dangerously inaccurate over time?
If, on the other hand, universities are allowed to sack academics in circumstances similar to Ridd, with obvious impacts for the quality of research and learning, then Australians are entitled to confirmation of this dystopian brave new world at Australian universities from our highest court.
And dystopian it certainly is. Along with making 17 findings against Ridd, two speech directions and five confidentiality directions (even prohibiting him at one stage from speaking with his wife about the matter), JCU also issued a “no satire” direction against Ridd demanding he not make fun of the disciplinary proceedings.
No satire? It’s hard not to make fun of a taxpayer-funded university that censures, then sacks, a respected professor of physics, and employee of 27 years, a man ranked in the top 5 per cent of researchers globally for raising questions about the quality of climate science research at the Great Barrier Reef.
Only this week, this report slipped under the ABC News’s Armageddon radar: “Researchers have found a new reef that is as tall as a skyscraper in the waters off Cape York in north Queensland.” As Ridd told Inquirer this week, “we are constantly learning new, and incredible things about the reef”.
The shoddy, disproportionate treatment of the physics professor by JCU has become the centrifugal force to better protect academic freedom at universities, not just via the courts, but by parliament too.
Ridd’s sacking led Education Minister Dan Tehan to initiate a review into free speech and academic freedom at Australian universities in 2019 by Robert French. Nothing had been done prior to Tehan taking the portfolio. This week, Tehan tabled the Higher Education Support Amendment (Freedom of Speech) Bill 2020, which gives effect to legislative changes suggested by the former chief justice. The bill requires that universities commit to “academic freedom” — as defined by French — in return for getting registration, and taxpayer funds.
These are indeed interesting times for academic freedom, with a review under way by Professor Sally Walker into the implementation by universities of the model code on academic freedom also recommended by French.
The model code is intended to operate as an umbrella-like standard to fall over all university policies, codes, pronouncements, etc. If a particular enterprise agreement has a broader definition of academic freedom, that is great for academics at that university. If an EA offers less protection than French’s model code, then that model code will lift the standard of academic freedom protections. That will be a terrific boost for academic freedom across the country because, as experts who have trawled through EAs of Australian universities told Inquirer this week, none of the EAs offer more protection than French’s model code.
When Walker’s review is completed late next month, we will discover which vice-chancellors have dragged the chain, more cowardly corporatist controllers than defenders of robust intellectual excellence.
Their incalcitrant approach to academic freedom should firm up the minister’s resolve to stop the rot.