The Peter Ridd case is too important to be left to the courts

A lot rides on the case of Ridd v JCU, which was heard last Wednesday, June 23, 2021, in the High Court of Australia.

The case is to determine whether an academic can criticise other academics at the same institution for their academic work without breaching the university's Code of Conduct and being liable to be sacked.

If Ridd loses, then, without remedial action by the government, academics become mere cyphers of their universities, unable to strenuously critique the work of their colleagues. Instead of fearless seekers after the truth, their role will be as little more than publicists for their respective institutions, and whatever work is produced by their colleagues, good, bad, or indifferent.

The ills arising from this are not trivial. If Ridd is correct that significant portions of the research on the Great Barrier Reef done by James Cook University researchers is sloppy, and not objective, then JCU is playing a central role in efforts by UNESCO, and perhaps even the Chinese government, to destroy the reputation of the reef by listing it as endangered.

If UNESCO lists the reef as endangered, we can expect the North Queensland region to suffer. While academics will continue to receive significant research grants (the Great Barrier Reef Foundation alone has half a billion to distribute), and the university board will bask in the glory, anyone in tourism, or connected to it, will lose.

There may also be flow-on effects to other industries, like cane farming for example, which may be forced to adopt expensive new agricultural practices, but with no return in terms of the health of the reef, and a decrease in their ability to farm profitably.

If you were going to establish the right of academic freedom in Australia's universities, the High Court would not be your first recourse.

In the first place, it is fearsomely expensive. To get to this position Ridd has had to crowdfund $1.5 million, as well as tipping in some of his own money. The university will face a similar bill, and a potential payout for wrongful dismissal.

In the second place the success of the enterprise depends on the shaky foundation of the performance of two legal champions as judged by the bench of the High Court, and the actual legal points, while determinative of the case, may only tangentially touch on the real matters of principle.

Stuart Wood AM QC for Ridd practices in industrial law while Bret Walker SC for JCU has a broader practice, most recently successfully defending Cardinal Pell in the High Court. They're both eminent, but is this form of settling a dispute much different from duelling where chance, as well as skill, can deliver the outcome?

The major argument is essentially whether the Enterprise Agreement, an instrument of federal law, takes precedence over the Code of Conduct, an instrument of Queensland state law.

Academic freedom, as well as intellectual freedom, are guaranteed in the EA, as is the right to participate in the decision-making processes of the university.

Except that at one point the EA says that it encompasses the Code of Conduct, so the two documents are not completely separate, which led to some discussion as to how the EA and the Code were drafted, with both sides admitting the drafting could have been better.

Ridd is a mild-mannered man, and his criticisms of his colleagues seemed to me to be mild as well. He said things such as the Australian Institute for Marine Science "cannot be trusted", and that many scientists working on the Great Barrier Reef are "emotionally attached" and "not objective".

For me, these are views one ought to be able to express in any workplace, let alone an academic one where conflict is part and parcel of the job.

We will never know what the court thinks on these matters, because for tactical reasons, Ridd's team decided to concede that he had breached the Code. Their arguments were only directed to clauses 13 and 14 and 54 of the EA which governed academic freedom as well as confidentiality.

So Ridd could lose, even though a reasonable person might conclude that his conduct hadn't breached the Code. The EA forbids an academic from harassing, vilifying, bullying or intimidating, and it was common cause that Ridd had not done that, so what beyond that can the Code legitimately forbid?

Ridd was also said to have brought the university into disrepute, but in part of his submission JCU's counsel raised the issue of short-term and long-term reputational damage. That seemed to be an "own goal".

Ridd's actions were aimed at exposing poor science, which in the short-run might hurt the university's reputation but must give it the long-run advantage of producing better science, and thus enhancing its reputation. The whistle-blower isn't the one bringing the institution into disrepute, it is the malefactor.

The most puzzling thing about the affair is that neither the Queensland government, nor the federal government, have seen fit to investigate the underlying complaint. This isn't an issue that just touches the Great Barrier Reef.

There is a replicability crisis in science that threatens the whole edifice. The scientific method works because it delivers results, based on transparency. As a community, we invest huge sums of money in universities on the basis that not only do they provide a public good, but that they increase the wealth of the country.

Sloppy science is the equivalent of fraud. When a senior member of an intellectual organisation blows the whistle on what he says is malpractice, takes the matter to the highest court in the land, and raises $1.5m on the way through, there must be a very strong prima facie case.

If Ridd loses, and there is no government action to investigate possible malpractice, or shoddy research methods, then what academic will ever speak up in the future when they see colleagues failing to meet the standard?

And if academics can't criticise their colleagues, there will be a decline in standards as the least scrupulous academics set the tone for what others can get away with.

The Ridd matter has been going on since 2015. It's long past time that the substantive matters should be investigated by a body with power to do so, and with an interest in getting them right, and that's not the High Court of Australia.