Ridd judgment leaves academic freedom ‘too ambiguous’

Australia’s High Court decision on a dissident scholar’s sacking has raised new questions over whether academic freedom includes the right to comment on university activities.

Peter Ridd said that the legal meaning of academic freedom needed to be “utterly clear cut”, and the current uncertainty was like walking near a cliff on a foggy night. “If you’re an academic and you think the cliff edge is somewhere but you don’t know where it is, you don’t go out at night. These things must be clear,” he told Times Higher Education.

Australia’s “model code” for protecting academic freedom, which all the country’s universities have adopted, includes the right of academics “to express their opinions in relation to the higher education provider in which they work” within its definition of academic freedom.

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Amendments to the Higher Education Support Act (Hesa), which passed parliament in March, also include this definition.

However, the High Court did not consider this aspect of academic freedom in its judgment over Dr Ridd’s treatment by his former employer, James Cook University (JCU).

The court found that JCU had been justified in censuring Dr Ridd over emails in which he said he had offended “powerful organisations” 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,” the judgment says. “And Dr Ridd made no submissions that could have justified these remarks otherwise falling within the intellectual freedom protected by [his enterprise agreement].”

The court unanimously dismissed Dr Ridd’s appeal against a 2020 Federal Court ruling that upheld his 2018 dismissal. It ruled that early disciplinary actions against Dr Ridd had been unjustified because he had been exercising legitimate rights to academic freedom, but subsequent sanctions and his eventual dismissal had been justified by his breach of confidentiality obligations.

Dr Ridd conceded that as a physicist he had no academic expertise on universities’ attitudes to free debate. “But I think the average person would think academics should be able to say things like that.

“These comments were found from trolling through emails. [Universities] can read everything you write, and they can always find something that isn’t physics. If they don’t like it, bang, you’re gone.”

Dr Ridd said more clarification was needed in the Hesa and the model code. The code should also require consistently worded protection of academic freedom in universities’ enterprise agreements “so that there is absolutely no doubt about it”.

“If there’s a conflict [between the work agreement and other provisions] there’s now a legal argument, and the university will win in almost every case because the academic won’t have the money to take it to court,” he said.

Dr Ridd said the comments in his emails could have been interpreted as referring to universities other than his employer, and therefore outside the ambit of academic freedom. “I should not have to be forced to argue the toss about whether my comments were about my institution. There will be grey areas there that the university can exploit with its legal power.”

The High Court’s interpretation of academic freedom does not appear to encompass people like Murdoch University mathematician Gerd Schröder-Turk, who endured a sustained legal conflict with his employer after criticising its treatment of international students.

Dr Schröder-Turk said academic freedom should explicitly include the ability to comment on “any aspect of the provision of higher education or the tertiary sector”.

He agreed on the need for clarity around such issues so that people did not inevitably get into trouble for exercising academic freedom. “Once you get into a situation where you have said something controversial, you have to be constantly vigilant because people are out to get you. You constantly fear that you might make mistakes that can be used against you,” he said.

Dr Ridd said the Hesa and the model code also needed changes so that they expressly forbade confidentiality clauses around issues of academic freedom.

The High Court found that JCU had been entitled to enforce confidentiality obligations on Dr Ridd, even in discussing university actions that the court determined to be unjustified impediments on his academic freedom. “[According to] this decision, a university can act unlawfully and still have the right to tell the academic not to talk about it,” he said.

“These confidentiality provisions are brutal, and that’s where the real power lies. Almost nobody else understands, because they haven’t been through what happens when you’re told you can’t talk to anyone.”

He said he was aware of two “egregious” cases of academics having their intellectual freedom curtailed. “But they can’t talk about it because of confidentiality. [They] shouldn’t have told me about it because they’re breaking a university order which is now deemed to be legal.”

john.ross@timeshighereducation.com