Reef coral opinions bleached … Fresh from spankings by the Full Family Court, Judge Vasta rides to the rescue of a sacked professor … Lengthy judgment without citing a single authority or precedent … Sal turns his hand to intellectual freedom … Janek Drevikovsky reports
The unfair dismissal claim was brought by geologist Peter Ridd, formerly a professor at JCU. He has a history of questioning the science that shows the Great Barrier Reef is in a state of ill-health.
Between 2015 and 2018, Ridd and his superiors at JCU faced off in an escalating stoush over the professor’s professional conduct. At the time, Ridd was repeatedly attacking research into the Barrier Reef.
His campaign was public – he published papers disputing studies on coral bleaching, and contacted journalists with his opinions.
He became a darling of the climate denying right, including news Corp and the IPA. He appeared on Alan Jones and Peta Credlin’s Sky News TV show where he argued the reef would quickly recover from mass coral bleaching, adding that scientists had been blinded by their emotions and “we can no longer trust scientific organisations”.
Alan Jones was triumphant:
“The government in Canberra believe all this rubbish that the bleaching is destroying the coral, the Great Barrier Reef’s at high risk, high danger and so we’ve got to tip in a billion dollars.”
Time and time again, JCU authorities found Ridd had breached the university’s code of conduct. They said his behaviour damaged the university’s reputation, failed to engage his peers in a collegiate and respectful manner, which at times amounted to harassment – all in violation of clauses in the code.
In early 2018, Ridd was fired.
Ridd took his case to the Federal Circus Court, alleging unfair dismissal. Sal analysed the question before him:
“Some have thought that this trial was about freedom of speech and intellectual freedom.
Media reports have considered that this trial was about silencing persons with controversial or unpopular views.
This trial was about none of the above. Rather, this trial was purely and simply about the proper construction of a clause in an Enterprise Agreement.”
The clause in question was clause 14 of the James Cook University EBA, entitled “intellectual freedom” – a topic which Sal treats to a lyrical excursus, having just told us this is not what the case is about.
“In reality, intellectual freedom is the cornerstone of this core mission of all institutions of higher learning.
Intellectual freedom allows academics to challenge the status quo and encourage critical analysis. History tells of many people who did so.
During the last 160 years, arguably the two most prominent scientists/academics to challenge the status quo have been Charles Darwin and Albert Einstein.
There is great power in intellectual freedom. But with great power there must also come great responsibility.
[This] is why there is often an uneasy tension between those responsible for the administration of an institution of higher learning and those responsible for promulgating the ideas that give the institution their raison d’etre.” [sic.]
After setting out cl.14 alongside parts of the code of conduct, Salvatore turns to the task at hand – to judge whether 17 separate findings against Ridd, made under the university’s code of conduct, were lawful. A grim task, and a very long one:
“In undertaking this task, it will, unfortunately, be necessary for the court to reproduce quite a deal of material so as to put all of the matters in their proper context.”
Sal is true to his word. He quotes over 20 pieces of correspondence – many in full – between Ridd, the university, journalists and other academics. He also includes in his judgment a complete transcript of Ridd’s interview with Credlin and Jones.
In the judge’s view, the majority of the university’s findings were unlawful, because Ridd had been exercising the right to intellectual freedom.
The university ignored this right, guaranteed by the Enterprise Bargaining Agreement cl.14, and therefore improperly applied the code of conduct.
Sal said:
“The fundamental error made by the university is one that pervades their conduct throughout the whole of their interaction with Professor Ridd.
The university has assumed that the Code of Conduct takes precedence over cl.14. That is why there is no reference to cl.14 in any of the reasons given for the findings.”
He reasoned that it is ludicrous to believe that the code of conduct, which can be changed at the university’s discretion after “consultation”, could override the EBA, which only the Fairwork Commission can alter.
No authority is cited for this point, or for any other point.
Judge Vasta decided, at one stroke, to abolish the principles of citing authority and precedent in his reasons, even though other cases were mentioned in submissions.
“I have had regard to the submissions of both counsel and the many authorities to which they referred me.”
Where are they? He does mention the US Constitution, reminding us:
“Australia has no underlying constitutional right to freedom of speech as expressed in the First Amendment to the United States Constitution.”
Perhaps Judge Vasta thinks that with such an elegant legal mind he doesn’t need authorities, a problem that has been noticed several times by the Full Family Court.