Saturday, October 16, 2021

Net Zero Watch: Academic freedom under siege


In this newsletter:

1) Peter Ridd to ‘continue the war’ after High Court appeal loss over sacking
The Australian, 13 October 2021

2) Peter Ridd: High Court fails to defend freedom of speech
Peter Ridd, 13 October 2021

3) Chris Merritt: James Cook University bears eternal mark of dishonour in Peter Ridd case
The Australian, 13 October 2021
4) A catch-22 defeated Peter Ridd – but there’s still hope for academic freedom
Mathew Lesh, Spectator Australia, 14 October 2021
5) Academic freedom under siege
Editorial, The Australian, 13 October 2021
6) Morgan Begg: Ruling against Ridd shines light on cancel culture
The Australian, 13 October 2021
7) Jennifer Marohasy: Plain english lost on the High Court of Australia
Jennifer Marohasy, 13 October 2021
8) Cancel culture's ultimate conclusion: China to outlaw all news outlets not funded by Communist Party
The Daily Telegraph, 11 October 2021

Full details:

1) Peter Ridd to ‘continue the war’ after High Court appeal loss over sacking
The Australian, 13 October 2021

Academic Peter Ridd says ‘a loss is more likely to get government action on the academic freedom of speech battle’.

Peter Ridd says he has “lost the battle but will continue the war” after the High Court found James Cook University was justified in sacking the physicist despite the fact he was entitled to make the criticisms of climate research that led to his dismissal.

But Education Minister Alan Tudge said the outcome — bringing to an end a five-year legal battle — was concerning and he had requested “further advice about the implications” of the matter.

“There are few things more important for the advancement of truth and knowledge than having open, robust debate at our universities,” Mr Tudge said.

“We need a culture in our universities of accepting and welcoming open robust debate, even if some feel offended in the process … I am concerned that, in some places, there is a culture of closing down perceived ’unwelcome thoughts’ rather than debating them,” he said.

The unanimous decision on Wednesday upheld the former science professor’s “intellectual freedom” to question the quality of research on the Great Barrier Reef in terms that were deemed by JCU to have breached its code of conduct for academic staff.

Education Minister Alan Tudge. Picture: Gary Ramage
But in dismissing his appeal, the High Court judges found Dr Ridd’s firing was justified on 18 grounds that did not impinge on his prerogative to break with the scientific consensus on climate change, attack fellow academics and take issue with the impact of warming on the reef.

Dr Ridd told The Australian: “We’ve lost the battle, yes, but this is not the end. I have often said a loss is more likely to get government action on the academic freedom of speech battle, but this is not the end of the war to get quality assurance in science. You will note that in the judgment the justices actually supported my right to be able to say some of the things about science which the university censured me for.”

The High Court found that the intellectual freedom Dr Ridd had sought under the workplace enterprise agreement covering his employment was not a general freedom of speech, and he was bound by the university’s code of conduct.

While he was not required to exercise intellectual freedom respectfully or courteously – as stipulated in the code – Dr Ridd had to follow university rules when dissenting from JCU decisions and maintain confidentiality.

The decision ends a saga that began when Dr Ridd, 60, then head of physics at JCU’s home campus in Townsville, attacked the work on climate-related coral loss of leading reef scientists and the trustworthiness of research centres such as the Australian Institute of Marine Science.

He was sacked in 2018 after being censured for breaching JCU code of conduct requirements that he air criticism of colleagues or the university in a collegial and respectful manner, but then won $1.2m in damages against the university in the Federal Circuit Court.

This was in turn overturned on appeal by the Full Court of the Federal Court – a decision Dr Ridd challenged in High Court.

Marine Physicist Peter Ridd says Commonwealth government “intervention” is the “only way” to ensure the free speech of academics is protected.

In a complex decision, the panel headed by Chief Justice Susan Kiefel found that neither the position of the primary trial judge nor the Full Court could be entirely accepted.

With both sides conducting the case on an “all-or-nothing basis”, Dr Ridd had failed to prove that none of the university’s ­actions against him was justified.

“At the high level of principle at which the appeal was argued, the essential question is whether … intellectual freedom should be qualified (1) by a requirement to afford respect and courtesy to others in the expression of issues and ideas in one’s field of competence and (2) by obligations of confidentiality in relation to JCU’s disciplinary processes,” the court found. “The best interpretation … is that the intellectual freedom is not qualified by a requirement to afford respect and courtesy in the manner of its exercise. That interpretation aligns with the longstanding core meaning of intellectual freedom.”

But this did not affect the outcome, the judges ruled.

Dr Ridd said: “I am not going to argue whether the High Court is right or wrong, but what I would say is that everything I said should have been OK, and the fact that it wasn’t means there was a problem with the JCU work contract, and we have got to make sure that other work contracts in Australian universities allow for freedom of expression.”
In a statement, JCU said the case was about employment law, turning on wording of the superseded 2013 enterprise agreement. “James Cook University at all times has made it clear that it strongly supports the pursuit of intellectual enquiry and the freedom of staff to engage in academic and intellectual freedom,” a spokesman said.

Former JCU Professor Peter Ridd lost his job for “speaking out against the zeitgeist,” according to Sky News host Chris Kenny.

But constitutional law expert George Williams backed Dr Ridd’s call for more to be done by the federal government. “At the core of it, I think there is a very strong affirmation by the High Court of intellectual freedom, clear recognition of the value and importance of that freedom, and most significantly … that it’s not justified to ban disrespectful or discourteous conduct,” Professor Williams said.

“In other words, they recognise that academics within their field of expertise can exercise this freedom in disrespectful and discourteous ways. I welcome that decision and see it as a strong ­affirmation of that value.”

Professor Ridd confirmed that the Institute of Public Affairs, a conservative think tank, had tipped in $8000 to fund his costs, but this had been a fraction of the $1.8m bill. Of this, $300,000 had come out of his own pocket with the remaining $1.5m raised by GoFundMe drives that attracted 10,000 individual contributions.

Asked whether the expense was worth the result, he said: “I often wonder whether if I knew what was going to happen, would I have made those fateful comments … I hope I would, because this is a battle that had to be had and, in retrospect, lost.

“It demonstrates the huge problem we have with universities and I really am quite confident that the government will act more to do something about this.”

Professor Williams, of UNSW, recommended the “clear cut-through” of legislation to enshrine freedom of speech for academics and the community, along the lines of anti-discrimination and sexual privacy laws.

Dr Ridd said while his academic career was over, he would continue to perform unpaid work with the IPA and other organisations to promote freedom of speech and academic freedom.
2) Peter Ridd: High Court fails to defend freedom of speech
Peter Ridd, 13 October 2021

It is with a heavy heart that I inform you that we have lost the appeal in the High Court. We lost, in my opinion, because JCU’s work contract, under which I was employed, effectively kills academic freedom of speech – and the contract is effectively the law.

So, JCU actions were technically legal. But it was, in my opinion, never right, proper, decent, moral or in line with public expectations of how a university should behave.

I often ask myself, if I knew what was going to happen, would I have handled that fateful interview with Alan Jones and Peta Credlin in 2017 differently. Would I still say that, due to systemic quality assurance problems, work from a couple of Great Barrier Reef science institutions was “untrustworthy”?

It has cost me my job, my career, over $300K in legal fees, and more than a few grey hairs.

All I can say is that I hope I would do it again – because overall it was worth the battle, and having the battle is, in this case, more important than the result.

This is just a small battle in a much bigger war. It was a battle which we had to have and, in retrospect, lose. JCU’s and almost every other university in Australia and the western world are behaving badly. We have shown how badly.

Decent people and governments can see the immense problem we have. The universities are not our friends. Only when the problem is recognised will public pressure force a solution.

The failure of our legal action, and JCU’s determination to effectively destroy academic freedom of speech, demonstrates that further legislation is required to force universities to behave properly – especially if they are to receive any public funding.
The Commonwealth government introduced excellent legislation in parliament early this year, partly in response to our legal case, to bolster academic freedom of speech. It is an excellent step in the right direction. If my case had been fought under this legislation, I would have had a better chance of winning. But it would still have been far from certain. There would still have been a clash between the new legislation and the work agreement.

There needs to be major punishment against universities for infringement of academic freedom of speech, such as fines or losing their accreditation. There needs to be active policing and investigations of the universities to make sure they comply and do not threaten academics with expensive legal action to stop the university’s behaviour becoming public.
Universities must be told that they cannot spy on academic’s email communications (this should only be done by the police) or use secrecy directives to silence and intimidate staff. And all this protection for academics MUST be written into the work contracts to put the matter beyond legal doubt.
Full statement
3) Chris Merritt: James Cook University bears eternal mark of dishonour in Peter Ridd case
The Australian, 13 October 2021
James Cook University has just learned a terrible lesson: it might have won its fight against Peter Ridd but its reputation will never be the same.
The High Court has found unanimously that this regional institution was wrong when it twice censured Ridd, a world-class academic, for making honest and lawful statements on matters within his expertise.

Those findings are a mark of dishonour that will never be ­expunged.
Potential students and academics will be able to see that this organisation was wrong to ­censure Ridd in 2016 for what it said was the tone and manner of his honestly held views. They will see that the university was wrong to censure him for remarks on Sky News in 2017 in which he said it was no longer possible to trust research on the Great Barrier Reef from the Australian Institute of Marine Science and the Australian Research Council’s Centre for Excellence for Coral Reef Studies.

Future generations will see that the university was wrong to cite his remarks to Alan Jones and Peta Credlin on Sky News and tell him his intellectual freedom did not extend to criticising “key stakeholders of the university” in a manner that was not “respectful and courteous”.

According to the High Court: “In the absence of any assertion that his remarks amounted to harassment, vilification, bullying, or intimidation, or that they were defamatory or not honestly held, the remarks were protected by the intellectual freedom in” clause 14 of the university’s enterprise agreement.

Yet Ridd still lost because both sides chose to run their arguments on what the court described as an “all or nothing” basis.

He had urged the court to find that all of the university’s findings against him were unjustified.
That turned out to be a tactical error.
Ridd had some clear wins and persuaded the court that the university had no business trying to prevent him expressing honestly held beliefs on matters that were within his academic expertise.up
But he lost the case because the university had 18 other grounds for dismissing him over statements that went beyond opinions that were legally ­protected by the enterprise ­agreement.
This case turned on the relationship between the university’s code of conduct - with its requirement to act collegially and respect the reputation of colleagues - and the guarantee in the enterprise agreement of the right to express unpopular or controversial views.
For the university, this is a Clayton’s victory.
After citing On Liberty by John Stuart Mill, the judges abandoned normal practice and declined to make an order that Ridd should pay the university’s legal costs.
That amounts to quite a penalty. Bret Walker SC, who ran the case for the university, is one of the nation’s greatest advocates. He is not cheap.

So who walks away from this case in better shape? Ridd is a modern martyr to freedom of speech. James Cook University is tainted.

Chris Merritt is vice-president of the Rule of Law Institute of Australia
4) A catch-22 defeated Peter Ridd – but there’s still hope for academic freedom
Mathew Lesh, Spectator Australia, 14 October 2021
Peter Ridd has lost in the High Court, but the judgment has nevertheless set an important precedent in favour of academic freedom.  
Ridd was sacked by James Cook University in 2018 after expressing contrarian views about the science regarding the Great Barrier Reef. He also made a range of other comments about the disciplinary process and broke the confidentiality direction from the university.  

The central issue in the case was the interplay between the academic freedom provision in Ridd’s enterprise bargaining agreement and JCU’s code of conduct.  
JCU claimed that Ridd broke the code of conduct by acting in a way that was not collegiate. His strong criticism of his colleagues’ science was, JCU claimed, not entitled to intellectual freedom protection. But the High Court found that JCU’s submission would mean the intellectual freedom provision would serve “no substantive purpose” because it can be overruled by the code of conduct. The Court rejected this conclusion. 
Instead, the Court accepted Ridd’s alternative submission that the intellectual freedom provision has much fewer limits. “The best interpretation of cl 14 [the intellectual freedom provision], having regard to its text, context, and purpose, is that the intellectual freedom is not qualified by a requirement to afford respect and courtesy in the manner of its exercise,” the judgement concluded.  
Quoting J.S. Mill’s On Liberty the ruling says: 
"Whilst a prohibition upon disrespectful and discourteous conduct in intellectual expression might be a “convenient plan for having peace in the intellectual world”, the “price paid for this sort of intellectual pacification, is the sacrifice of the entire moral courage of the human mind”. 
In this vein, the High Court concluded that Ridd should not have been given a first censure in 2016 for earlier contrarian comments. That’s what kicked off this entire episode.  
Ridd still lost the case. That’s not because of Ridd’s comments about science with respect to the great barrier reef per se, but rather, eighteen other allegations of serious misconduct. These allegations relate to how Ridd responded to JCU.   
Ridd’s legal team did not contest each individual claim by the University, instead accepting they were ‘serious misconduct’ but claiming they were protected by the ‘intellectual freedom’ provision. The Court did not agree that discussing the case and damaging JCU’s reputation, among other commentary about the university, was protected speech because it did not directly relate to Ridd’s academic research.  
In particular, the Court concluded that Ridd should have followed JCU’s confidentiality directions. This is a tad problematic. It would have been impossible for Ridd to raise funds to fight the university if he did not break the confidentiality directions. It’s a Catch-22: go public to oppose a university disciplinary process and you can justifiably get fired. 
Together, this finding leaves academic freedom not entirely destroyed but nor strongly protected.
It emerged today that every university in Australia has adopted former chief justice Robert French’s model code on freedom of expression – that followed on from earlier Institute of Public Affairs reviews of university policies. There is also new legislation, partly in response to Ridd’s case, from earlier this year that better protects academic freedom. But Ridd does not have his job back and the overall conclusions of the case could have a chilling effect on academic freedom at universities. 
Ridd has announced will donate his time to the Institute of Public Affairs as a Fellow without salary to work to improve quality assurance in science, making documentary and educational films, and ensuring that no academic speaking out for integrity in science will endure the ordeal that he suffered. 
The IPA has today launched an appeal to raise $300,000 for the Project for Real Science.  Tax deductible donations to support the research of the Project for Real Science led by Dr Peter Ridd can be made at
With academic freedom not entirely secure it may very well be new institutions like this that carry forward intellectual debate. 
Matthew Lesh is an Adjunct Fellow at the Institute of Public Affairs. 
5) Academic freedom under siege
Editorial, The Australian, 13 October 2021
Physicist Peter Ridd and those who value intellectual freedom on campus may be forgiven for thinking the outcome of his High Court case is perverse.
In Wednesday’s unanimous rejection of his appeal, the judges nonetheless concluded that Dr Ridd’s whistleblowing about the integrity of marine research was protected by the intellectual freedom provisions of the workplace agreement with his employer, James Cook University.
And JCU was wrong to argue Dr Ridd had to show “courtesy and respect” towards the researchers he was criticising. The judges rightly said the purpose of intellectual freedom – to seek truth among contested ideas – must prevail over otherwise desirable norms.
If Dr Ridd’s criticisms were sound, then the reputations of others ought to suffer. The court also suggested Dr Ridd could have successfully attacked some of the seemingly endless misconduct charges against him as baseless or trivial; one JCU directive ordered him not to satirise the disciplinary proceedings that led to his dismissal in 2018.

If Dr Ridd has enjoyed a moral victory, he suffered a legal defeat because the intellectual freedom encoded in the workplace agreement did come with some constraints, his protracted struggle with JCU took him outside his protected zone of academic expertise, and the case was run in such a way that JCU only had to make one of its misconduct charges stick, which it did.

It may seem bittersweet that Dr Ridd’s personal setback coincides with the announcement by Education Minister Alan Tudge that all universities have now adopted the model code for free speech and academic freedom that emerged from the inquiry by former High Court chief justice Robert French. This is a welcome but modest measure when judged against the scale and nature of threats to the intellectual health of higher education.

Free speech and open debate on hot-button topics such as the environment, gender, history and culture have weak constituencies in many universities around the English-speaking world. These are inconvenient values for the central bureaucracy, which has been growing in size for decades. The corporate university is well equipped to defend its brand power from internal dissent.
Also noteworthy is the burgeoning campus officialdom that practises identity politics under the banner of equity, diversity and inclusivity. Viewpoint diversity – the true liberator on campus – is at a discount. Within the EDI world view, the universal value of free speech is seen as yet another tool used by designated oppressor groups to subjugate victim groups.
What passes as oppression is often nothing more than a sense of outrage when activists encounter contrary views. In this way, mere words are said to be dangerous, making the university an unsafe place. These corrosive tendencies are most advanced in the US but Australia is not free from them.

The University of Melbourne has come under pressure from activists because feminist philosopher Holly Lawford-Smith has been documenting claims of risks to women and girls created by allowing biological males to self-identify as transgender women.
In Britain, trans activist threats against another feminist philosopher, Kathleen Stock, have led to a wave of revulsion, captured in Tuesday’s editorial in The Times of London, declaring: “It is a scandal and a disgrace that an academic at an English university must keep off campus and teach solely online because of threats to her personal safety.”

An academic freedom policy is hollow without university leaders who can grasp the civilisational values at stake, articulate them persuasively and stand up to bullies.
6) Morgan Begg: Ruling against Ridd shines light on cancel culture
The Australian, 13 October 2021
The High Court of Australia’s verdict in favour of James Cook University’s right to sack one of its employees, a professor of physics, for questioning the science of climate change is an endorsement of the culture of censorship suffocating Australian life and further confirms that the nation’s universities are in crisis.
The unanimous judgment handed down by the High Court on Wednesday was the culmination of a nearly six-year fight by Peter Ridd against JCU, which terminated his employment in May 2018.
Before his dismissal Ridd was subject to a series of disciplinary proceedings in relation to his public criticism of the scientific evidence on which rested claims that climate change was killing the Great Barrier Reef.
In a publication of the Institute of Public Affairs, Climate Change: The Facts 2017, Ridd wrote, for instance, that “the serious problems with quality assurance in many areas of science” mean “we can be sceptical of claims the Great Barrier Reef is in peril”.
Ridd was first investigated and charged with serious misconduct in 2016 for emailing a journalist to express his criticisms of prominent reef science.
The High Court found that in this instance Ridd’s comments were protected by the provisions in his enterprise agreement in force at the time that protected intellectual freedom. To prove that nothing a person says before the word “but” really counts, the court’s lip service to academic freedom ultimately was undone by its finding that breaches of confidentiality directions were not protected and hence the termination of his employment in May 2018 was lawful.

The implication seems to be that the university could launch an unlawful investigation against an employee, but it would be entirely lawful to force the employee to keep secret the investigation.
This would mean that an investigated party who wanted to challenge an unlawful investigation would not be able to raise funds to do so or seek outside help. It also would mean that the direction to Ridd to maintain secrecy even from his own wife was also lawful.
The endorsement of the university’s star chamber disciplinary system is a staggering rejection of natural justice.

The court agreed that the university could make secrecy orders. This reveals, as Justice Darryl Rangiah noted in his dissenting judgment when this case was heard in the Federal Court, “a Kafkaesque scenario of a person secretly accused and secretly found guilty of a disciplinary offence but unable to reveal, under threat of further secret charges being brought, that he or she had ever been charged and found guilty”.
That the High Court bench as a group could fail to identify the clear problems of this manifestly absurd interpretation obviously reveals a problem in our judicial and legal culture.
The High Court’s failure to act also reveals that the cancellation of Ridd is not just a problem of a few rogue administrators, or even a crisis in our universities, but the symptom of a much wider problem in Australian society.
It is increasingly evident the ideology that has captured government, universities and corporate Australia is one that is designed to control what Australians are allowed to say and what information they are allowed to hear and read.
No matter what you believe about climate change or what is happening to the Great Barrier Reef, these cannot be settled subjects. The scientific method means more than just declaring a hypothesis as an incontrovertible fact. It means challenging a hypothesis to observe whether it stands up to scrutiny. The scientific method is a process of rigorous scepticism across time to find reliable results.
It does not mean, as JCU believes, that you can just ignore criticism. To this day, JCU has not responded to Ridd’s criticism of quality assurance in science.
In deciding to vindicate JCU’s authoritarian tactics to shut down what it considered heretical beliefs, the High Court shines a spotlight on the insidious cancel culture permeating Australia’s institutions. It is an important reminder that real science still exists but it is something that needs to be fought for if we are to have an honest debate about the future of the country.
Morgan Begg is director of the legal rights program at the Institute of Public Affairs.

7) Jennifer Marohasy: Plain english lost on the High Court of Australia
Jennifer Marohasy, 13 October 2021
Coral reefs can be messy, and so can court cases. And so it is with the case of Peter Ridd, sacked by James Cook University because he exercised his intellectual freedom. The only thing that is neatly settled from this case is apparently ‘the science’, never mind that this is only because anyone who publicly disagrees with it is censored or sacked. In the case of Peter Ridd, even after he managed to raise over A$1.4 million to appeal his sacking by James Cook University all the way to the High Court of Australia, he lost.

In a unanimous decision handed down this morning, the Court concluded that Dr Ridd’s right to intellectual freedom is constrained by the procedural requirements of James Cook University’s Code of Conduct. The High Court found his freedom of speech is limited only to his area of expertise. Those freedoms do not extend to issues about how the University is run, or whether the pronouncements made by its research institutions are trustworthy.

These matters are apparently internal; the University’s academics are obliged to follow procedure over these and, in particular, must be mindful when disciplinary matters are deemed confidential.

This sends a very strong message to all politically astute academics: if they are likely to make findings that do not accord with the consensus, these findings should be hidden within phrases that are unintelligible gobbledygook. In other words, their findings should be communicated in language that is meaningless, or is made unintelligible by the excessive use of technical jargon. They should certainly not translate their findings into plain English, or, worse, air them on national television, because that way the average Australian would have some understanding of what they are actually funding with their hard-earned taxes.

Full post
8) Cancel culture's ultimate conclusion: China to outlaw all news outlets not funded by Communist Party
The Daily Telegraph, 11 October 2021

Free speech fears over draft law that states privately funded organisations 'shall not engage in news-gathering, editing, and broadcasting'

China could ban all news media not funded directly by the Communist Party under new rules that will likely further limit freedom of speech.

Beijing published a draft law stating that privately funded organisations "shall not engage in news-gathering, editing, and broadcasting".
Officials have not confirmed whether the new rules will apply to foreign news organisations operating in China, effectively making them illegal.
But the move nevertheless indicates that Beijing may be preparing to exercise even greater control over the news, much of which is already state-controlled, further shrinking the platform for public scrutiny.
The proposed new rules ban private media-related businesses as part of a "prohibited" list of industries. 
'Very broad ban on everything relating to the news media'
"The 2021 list is a very broad ban on everything relating to the news media sector, while the 2020 list does allow non-public capital participation, subject to equity caps," said Henry Gao, an associate professor of law at Singapore Management University.

While it remains unclear if foreign news outlets like The Telegraph will be affected, local outlets are now likely to be facing an even more uncertain future.
Full story

The London-based Net Zero Watch (formerly Global Warming Policy Foundation - GWPF) is a campaign group set up to highlight and discuss the serious implications of expensive and poorly considered climate change policies. The Net Zero Watch newsletter is prepared by Director Dr Benny Peiser - for more information, please visit the website at

No comments: