Just as I was coming to the final stages of writing my book, ‘Will the Great Barrier Reef Survive?’ a very happy coincidence of timing took place. Justice S. Vasta, a Judge of the Federal Circuit Court of Australia delivered an important judgement which has an indirect impact on the right of Intellectual Freedom at a University. This judgement affirms the ability a whistle-blower scientist to take issue with his university over the standard of research on the Great Barrier Reef and to express views publicly.
The case was Ridd v James Cook University.
In the early paragraphs of his judgement Justice Vasta was at pains to point out that his judgement was not based on the issue of free speech, intellectual freedom or academic freedom. Rather, his judgement was based on the legal question of whether a broad freedom given to an academic under a University’s Enterprise Agreement can be taken away by a document of a lesser order of legal status – in this case the University’s Code of Conduct.
The judge found that, where the purported terms of a Code of Conduct are inconsistent with the Enterprise Agreement, the Enterprise Agreement must prevail. The judgement, delivered on 16th April, 2019, found that all 17 actions the University had taken against Professor Ridd were unlawful in Industrial Law.
While the judge expressly stated that the legal reasoning in the case was not directly about Intellectual Freedom, it is my view that the indirect impact of the judgement will be to boost the confidence of academics who feel intimidated by the constraints put on them by such onerous terms as were attempted by James Cook University’s Code of Conduct. The judgement was, therefore, indirectly, a victory for academic freedom.
The whistle-blowing scientist involved with the case is Peter Ridd the man we have met several times in previous chapters. The issue at hand was whether an academic employed by the University has a right to a true form of intellectual freedom and academic freedom of speech – as outlined in the University’s Enterprise Agreement covering employment conditions – or whether the employee really only has a ‘Clayton’s’ form of Intellectual Freedom. The Clayton’s form of Intellectual Freedom is one where the freedoms are hedged-in, limited, restricted, confined, qualified and otherwise degraded in a subordinate document – the employees’ Code of Conduct. In effect, this Code of Conduct set out to repudiate the freedoms which Ridd purportedly enjoyed as a condition of his employment.
The Enterprise Agreement, the primary and overarching document, is like the role of a Constitution in the government of a federation – it sets the fundamental rules. The Enterprise Agreement purportedly gave Ridd a wide scope of academic freedom. I assert that this document was virtue signalling in parts because academic freedom is regarded as an essential, centrally important, and virtuous characteristic of the academics at a University of any status. So, in the Enterprise Agreement, the University had to say some nice words about academic freedom and create the appearance of the same.
But, when the rubber hit the road in the day-to-day life of the academic, it became a different matter.
The Code of Conduct is a subordinate document drafted by the University but of lesser legal force. In the Peter Ridd case, the effect of the Code of Conduct appears to restrict the apparent freedoms of the Enterprise Agreement.
The noble but unstated subtext of the primary document – the Enterprise Agreement – runs something like this, ‘We are all part of the great and noble tradition of a Western University where we value scholarship and the free expression of ideas. We are free to dispute with others, free to voice our doubts, free to challenge conventional wisdom and free to advance new and controversial ideas.’
Wow! Wouldn’t you want to work for such an employer?
But the unstated subtext of the second document – the Code of Conduct – effectively contradicts the first and parts of it are basically in conflict. The subtext of the Code of Conduct is something like this, ‘Now, you might be a professor, and you might be highly qualified, and you might have done some good research, and you might have contributed to the University’s reputation but just remember that you are a simple journeyman in our eyes. You can forget all this academic freedom stuff – and conduct yourself in exactly the way that we specify.’ (Please remember, this is my rendition of the subtext, a bit over the top perhaps. It is my opinion and it is not written in these precise words anywhere. It is my interpretation of an unstated sub text.)
It is perhaps not surprising that Justice Vasta found that the University could not rely on the conflicting clauses of the Code of Conduct to censure and sack Ridd because Ridd was acting in legally within his rights under the more legally powerful of the two documents – the overarching Enterprise Agreement And to use the analogy of a Constitution again, Justice Vasta was acting in accord with the proposition that a government of the day cannot enact Legislation that is in conflict with the powers it has under a Constitution. Example:- In the early 1950s the Australian government passed Legislation to outlaw the Communist Party of Australia but the High Court of Australia found that the government did not have the Constitutional power to do that. The Court struck down the legislation. That, in an allegorical form, is what Justice Vasta has done in the case of Ridd v James Cook University.
I need to make it absolutely and abundantly clear that the Federal Court was not making a judgement about the science itself. The Court was not affirming that Ridd is correct in his views about the standards of research on the Reef. The Court was not, heaven forbid, ‘Peer Reviewing’ the scientific work of Peter Ridd. It was just affirming that Ridd has academic freedom under his terms of employment with the University and that the University’s actions against him were unlawful in Industrial Law.
So, this indirectly becomes a vindication of Ridd’s right to speak, his right to doubt, his right to question and his right to be a whistle-blower in his University’s setting. And this, in my view, gives encouragement to the rest of us in society who, like me, are not professors or highly qualified marine researchers. To my mind it affirms that it is valid for people in the general public to question and doubt the messages we are given about such things as the health of the Great Barrier Reef.
Justice Vasta’s judgement also affirms, to my mind, that the process of casting doubt on an implausible hypothesis is not an act of scientific vandalism, it is a responsible act in conformity with the most noble motivation in science. I want to proudly put myself in the group which seriously doubts the Doomed Reef Scenario and I hope you will consider putting yourself in the same group.
So, to end this Good News from the Federal Court chapter, and thinking of the role of doubt in science, I will quote an important statement from the end of Justice Vasta’s 74 page judgement.
At Clause 302, Justice Vasta wrote,
‘That is why intellectual freedom is so important. It allows academics to express their opinions without fear of reprisals. It allows a Charles Darwin to break free of the constraints of creationism. It allows an Albert Einstein to break free of the constraints of Newtonian physics. It allows the human race to question conventional wisdom in the never ending search for knowledge and truth. And that, at its core, is what higher learning is about. To suggest otherwise is to ignore why universities were created and why critically focussed academics remain central to all that university teaching claims to offer.’