Analysis of Climate Court Case. Professor Peter Reid vindicated

Reflections on Peter’s fight for free speech on climate change.    Gideon Rozner IPA Australia  18 April
 Institute of Public Affairs  Australia
It’s now been three weeks to the day since the hearing for the Peter Ridd case wrapped up at the Federal Circuit Court in Brisbane.

Since then, I’ve had time to read through the transcripts of the hearings (which you can read by clicking here), and of course Judge Vasta’s full decision (which you can read by clicking here) – and want to share with you a few of my reflections:

• In a strict legal sense, this case was an industrial relations dispute about the meaning of a term in an employment contract, specifically the right to intellectual freedom in Peter’s enterprise bargaining agreement.
  
  But of course, in a public policy sense, this case had much broader implications. The meaning of ‘intellectual freedom’ has consequences for much more than employment law. It is a question that goes to the heart of the growing crisis within our universities – the intellectual monoculture in which dissenting voices are being systematically stifled in deference to prevailing orthodoxies, not least of all climate science.
  
  The fact that a court of law has now upheld the right to air views that are controversial – even offensive – is a big achievement. It has upheld the right to question, to voice dissent, even to think freely.

• We should be worried, though, that in the face of Peter’s very serious allegations about the quality of climate science coming out of JCU, the university’s response was not to validate the science, but to drag Peter into a long and vindictive disciplinary process. One would think that if a professor of physics of over thirty years’ standing raises concerns about the quality of its research, any university would immediately seek to address such concerns.
  
  But not once did JCU attempt to engage with Peter’s substantive complaints about climate science. JCU just cherry-picked a few of Peter’s comments and slapped a gag on him on the basis of accusations such as not being ‘collegiate’.
  
  If this is the modus operandi of other universities – and indeed the entire climate change lobby – then we should be extremely worried. The so-called ‘settled science’ of climate change has informed public policy, which has cost the taxpayer billions upon billions of dollars and jeopardised entire industries.
  
  Peter’s case brought attention to one area of science that has been clouded by climate evangelism – that is, the idea that the Great Barrier Reef is ‘dying’ – but we must ask how much other climate change research is not being properly checked, tested or replicated.

• This case has also highlighted our increasingly polarised media landscape. Whatever your views on Peter’s case, it was a significant dispute with far-reaching implications. While the case was covered extensively, for example, in The Australian, The Spectator Australia and on Sky News – on which I appeared a number of times before, during and after Peter’s hearing – it was effectively ignored by outlets such as the Nine (formerly Fairfax) mastheads.
  
  Meanwhile the ABC, with its countless number of television and radio stations and substantial online reach, has only two reports about the outcome of the case on its website: One online, and one on radio. We should be concerned about the ABC in particular for its apparent neglect of this case, given its lofty claims about being Australia’s ‘most trusted’ and ‘independent’ news service.

• We should also be worried about the power of the state to silence dissent. As a university, JCU is a public institution, with powers that were used by a small cadre of administrators to censure, gag and, finally, sack Peter.
  
  We the taxpayers spend billions of dollars every year to create public squares of higher learning. At the very least, we should expect that universities achieve their intended purpose: The search for truth through intellectual inquiry and debate. They should not be echo chambers that stifle dissenting voices.
  
  Worst of all is the fact that JCU spent an estimated $2 million fighting this case. Not only do our universities accept public money to accommodate a narrow range of viewpoints, they throw said money at silencing opposition.

• But more optimistically, this case shows the power of dissent, of those who speak out and fight against established orthodoxies, from Galileo to Darwin, Bill Leak to Andrew Bolt.

• Finally, what would have happened if so many people hadn’t come to Peter’s aid? What would have happened if 2,405 people hadn’t reached into their pockets to raise over a quarter of a million dollars in just five days?

For more on the consequences of the Ridd case, please make sure to visit the blog (which can be accessed here) of my IPA colleague Dr Jennifer Marohasy, who has supported Peter from the beginning.

With all of that in mind, let me give you a recap on the hearing and this week’s decision.
Peter’s EBA and the right to academic freedom

Before I go into how the hearing unfolded, it’s worth taking a look at the legal arguments on which Peter and his team were relying.

In essence, this case is a workplace dispute in which Peter argued that, by terminating him on the basis of being outspoken on climate change and the Great Barrier Reef, JCU violated his right to academic freedom. This right is found in clause 14 of the enterprise bargaining agreement covering JCU staff – essentially Peter’s employment contract. Clause 14 says:

JCU is committed to act in a manner that is consistent with the protection and promotion of intellectual freedom within the university…
Intellectual freedom includes the rights of staff to:

• Pursue critical and open inquiry;

• Participate in public debate and express opinions about issues and ideas related to their respective fields of competence; [and]

• Express opinions about the operations of JCU and higher education policy more generally…

All staff have a right to express unpopular or controversial views. However, this comes with a responsibility to respect the rights of others and they do not have the right to harass, vilify, bully or intimidate those who disagree with their views. These rights are linked to the responsibilities of staff to support JCU as a place of independent learning and thought where ideas may be put forward and opinion expressed freely.

In other words, all JCU staff have a right to say what they like, however controversial or unpopular. The only limit is that they do not harass, vilify, bully or intimidate others. Importantly, JCU never alleged that Peter did any of these things.

But, incredibly, JCU argued that Peter’s right to academic freedom does not cover his comments on the quality of science surrounding the Great Barrier Reef. Chris Murdoch QC, the barrister acting for JCU, made perhaps the most stunning statement of the entire hearing on day two when he said:

MURDOCH: The submission that [JCU] makes is that when one considers the actual words used in [the enterprise bargaining agreement]… the intellectual freedom clause is nowhere near as wide in its application as [Dr Ridd] suggests.

As I said in my email later that day, that was an extraordinary thing for a university, of all institutions, to be arguing.

To support their argument that clause 14 should be construed ‘narrowly’, JCU relied on the university’s staff code of conduct. Specifically, JCU argued that in saying things like the science on the Great Barrier Reef produced by his colleagues ‘couldn’t be trusted’, Peter had reached vague requirements like the need to be ‘collegiate’ and ‘uphold the integrity and good reputation of the university’.

So as the hearing got underway, the stage was set for an important legal battle: An academic of 30 years’ experience trying to enforce guarantees of intellectual freedom, against university administrators arguing that those guarantees were, at best, limited.
Peter in the witness box

Central to JCU’s strategy was establishing that Peter had engaged not in genuine scientific discourse, but gratuitous and personal attacks against his colleagues. In particular, JCU took issue with this part of Peter’s interview on Sky News in which he discussed his chapter in the IPA’s Climate Change: The Facts 2017:

PETER: The basic problem is that we can no longer trust the scientific organisations like the Australian Institute of Marine Science, even things like the ARC Centre of Excellence for Coral Reef Studies. A lot of this stuff is coming out. The science is coming out not properly checked, tested or replicated, and this is a great shame because we really need to be able to trust our scientific institutions, and the fact is I do not think we can any more.

I just don’t think that they are very objective about the science they do. I think they’re emotionally attached to their subject.

Because organisations like the Australian Institute of Marine Science and ARC Centre of Excellence are affiliated with JCU, the argument was that Peter’s criticism of them was, among other things, ‘uncollegiate’. It was the key point they tried to get across when Peter stepped into the witness box to give evidence, which included questions from JCU’s barrister Chris Murdoch QC.

But Peter stuck to his guns, maintaining at all times that the remarks that got him in trouble with JCU were always – and only – about the quality of the science surrounding the Great Barrier Reef.

Here are the key parts of one such exchange:

MURDOCH: Now, I suggest that in making, in particular, the first of the statements that I’ve referred to, that in the course of that Sky News interview, you asserted that the AIMS and the ARC Centre could no longer be trusted in respect of the science that those entities were producing?

PETER: That’s correct. Yes.

MURDOCH: And you asserted that the persons who worked for those institutions were not very objective about the science they produced?

PETER: Yes. That’s correct.

[…]

MURDOCH: And, in effect, you were saying that the research that was being produced was dishonest?

PETER: Not at all. I was saying that it’s untrustworthy… I’m saying that the work coming from the organisation cannot be trusted because there’s not enough checking, testing or replicating going on as a quality assurance process.

MURDOCH: The work is performed by individuals?

PETER: Well, all – obviously, the work would ultimately be performed by individuals.

MURDOCH: And you were saying, weren’t you, that those individuals couldn’t be trusted?

PETER: I’m saying that the works that’s coming from them can’t be trusted if it hasn’t gone through a more rigorous quality assurance process than peer review.

Importantly, Peter was not only clear on what he had said, but why what he had said was so important:

MURDOCH: Now, I suggest that making an allegation that entities such as the AIMS or the ARC were not able to be trusted was a very serious allegation against them?

PETER: It’s an extremely serious allegation… and one of the reasons why it’s very serious is that the work that’s coming out of these organisations is being used to make legislation which is affecting virtually every industry in the North Queensland region. So it’s a serious accusation with a serious point.

JCU’s case collapses

Chris Murdoch QC may have not had much luck in grilling Peter in the witness box, but it was a picnic compared to the way in which Judge Vasta responded to his closing arguments.

Judge Vasta closely questioned Chris Murdoch QC about JCU’s argument that Peter’s remarks regarding reef science were not covered by the academic freedom clause on the basis that they were derogatory or insulting:

MURDOCH: So on one level, when he was on the Sky News program, he was engaging in intellectual freedom or exercising intellectual freedom, but the university’s point is that by making the particular statements that were the subject of the final censure, those statements, given the derogatory and insulting nature of them, were not encapsulated within clause 14 [the academic freedom clause].

JUDGE VASTA: Yes. But that’s what this whole case is about, isn’t it?

MURDOCH: Indeed. So…

JUDGE VASTA: I’m not too sure it’s the best example in some ways. I mean, that’s really answering the question. Your point is that you still can do what you are allowed to do under clause 14 and breach the code of conduct, whereas [Peter’s] argument is you can’t be breaching the code of conduct if you’ve acted within your rights of… intellectual freedom… I mean, you can think of all sorts of unpopular or controversial views. I mean, you know, let’s go back to the 15th century and, you know, the view was the earth is the centre of the universe and everything revolves around the earth. And that may have been an unpopular or a controversial view but… if Galileo says, “Look, you’re a dunderhead for thinking that. That’s got no empirical measurement and if you look at the way in which you’ve done your calculations, they’re just wrong,” well, you may be engaged in an intellectual freedom but you’ve done so in a way that, you know, offends the code of conduct and, I suppose, you know, that’s why he was imprisoned.

Judge Vasta also noted that Peter’s actual contentions about the quality of Great Barrier Reef science had never been debated. Instead, he was dragged straight into the university’s disciplinary process:

JUDGE VASTA: What did the university do about quality assurance in science? What did they actually do about the actual complaints? Forget about, you know, the facts. Sure. Go and censure him, go and have whatever disciplinary proceedings you want to have against him. What did they actually do about the complaints? And – because that’s something that would show the bona fides of the university, because they would be saying, “Yes. Totally agree with your right to question what we’re doing. And look what we’ve done. We’ve actually done this and gone through and look what we’re doing as far as quality assurances here now. But you did the wrong thing and we are going to make sure that the code of conduct and the enterprise agreement remain paramount here.”

You see, when nothing is done about the actual complaints or what he says is wrong with quality assurance but instead… there is no stone unturned as to making sure that the disciplinary process happens and happens to the letter of the code of conduct... is [Peter’s complaint about the university’s disciplinary processes] really that untruthful?

Intellectual freedom is a fundamental right

Of all the developments in this extraordinary case, the highlight for me would have to be the closing argument by Stuart Wood QC. It was masterful, weaving the finer legal points of the case into a broader narrative about the freedom of intellectual inquiry – a freedom that is ancient, essential and indispensable in the mission of a university.

You can read the entire closing argument here (starting from page 30) but in the meantime I’d like to share an extract, which I’ve edited for brevity:

WOOD: One of the things that my learned friend [Chris Murdoch QC] started with at the very beginning, given this is a case about intellectual freedom, is to say that, properly, the way to construe a clause like clause 14 is to look at purpose, text and context. There are two things about the context that he didn’t address you on at all and had been ignored by the university for the last two years: (1) this is a university; and (2) intellectual freedom is foundational to a university; that is, JCU didn’t invent intellectual freedom when it was founded 50 years ago. It wasn’t invented by the people who made the 2013 [enterprise bargaining] agreement. It has a long history that goes 10 back centuries and that’s part of the context.

This is a university saying that it’s an error to describe intellectual freedom as a fundamental right. This is extraordinary. We’ve listened for a day to the university advocating for a narrow construction of intellectual freedom. It would be like listening to someone from the church come and advocate for a narrow view of religious freedom. It’s a university doing this.

The idea of intellectual freedom is not about speaking the truth. It’s about speaking your opinion. Why? Because the clash of opinions, over time, if they’re hard enough, they’re tough enough, they’re direct enough, they will reveal the truth. Truth is the product of the exercise of intellectual freedom. It’s not a requirement for its exercise. All you have to have in order to exercise the rights granted by clause 14 and similar rights is an honestly-held opinion. Not to be truthful. That test could never be made out. Truth is the product of the contest of ideas. Yet our learned friend, acting for the university, criticises Dr Ridd – all wrong, by the way – that what he said was untrue.

This is a university, intellectual freedom is a doctrine that’s well understood and goes back a couple of millennia, and it covers what you say and how you say it. You have to give clause 14 a generous construction. Now, my learned friend started by saying you construe it narrowly. That’s wrong. Why is it wrong? (1) It ignores the context that this is a university and we’re talking about a fundamental right of academics in universities; (2) it is mission-fulfilling to have the broadest possible conception of academic freedom; (3) to do otherwise has a chilling effect on people’s ability to speak and reduces the freedom to nought; and (4) this is a right that’s essential to the enterprise and is what differentiates it. Lastly, it has to be a workable right. You can’t exercise this right with the fear of the Sword of Damocles hanging over you because you will never exercise it.

Judge Vasta rules in favour of freedom of speech

Judge Vasta was scathing in his assessment of the actions of JCU. These are some of the judge’s key points:

To use the vernacular, the University has “played the man and not the ball”. Incredibly, the University has not understood the whole concept of intellectual freedom. In the search for truth, it is an unfortunate consequence that some people may feel denigrated, offended, hurt or upset. It may not always be possible to act collegiately when diametrically opposed views clash in the search for truth.

The University have been at pains to say that it is not what Professor Ridd has said, but rather the manner in which he has said it, that is the underlying reason for the censure, the final censure and the termination. But the University has consistently overlooked the whole of what has been written. They have concentrated on small, almost incidental parts of what has been said and then used the Code of Conduct to pass judgement on those small parts, with the intention that the flow on effect of that judgement would impugn the whole of what Professor Ridd has written.

It is only when behaviour is not covered by clause 14, that the Code of Conduct can apply. Clause 14 means that it is the right of Professor Ridd to say what he has said in any manner that he likes so long as he does not contravene the sanctions embedded in clause 14. That is at the heart of intellectual freedom.

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.

What happens next?

While the court has found in Peter’s favour in relation to matters of law raised, it has yet to make any orders in relation to remedies. In other words, we have yet to find out what Peter will be awarded by the court, including whether he will get his job back.

Then there is the possibility that JCU will appeal to a higher court. On the one hand, they are a taxpayer-funded institution with substantial financial resources, and could easily keep the dispute going. But on the other hand, one wonders if JCU will actually decide to throw millions of good money after bad. We will see.

But in the meantime we should all be tremendously proud of what we have achieved. Thanks must go to Peter for taking a stand, to his extraordinary legal team – including Stuart Wood QC, Ben Jellis, Ben Kinston and Mitchell Downes and Amelia Hasson from Mahoneys – the IPA’s Dr Jennifer Marohasy and other IPA staff who worked overtime to bring you comprehensive coverage of the case via our digital media channels, and David Forbes, who acted as the IPA’s independent legal counsel during the case.

And not least of all, thank you to everyone who followed and supported Peter’s fight for freedom of speech on climate change, particularly the 2,405 people who donated to Peter’s legal fighting fund. None of this would have been possible without you.

We cannot be sure what exactly will happen next, but we can take a moment to enjoy this extraordinary achievement. In an era of trigger warnings, safe spaces, no-platforming, intellectual narrowness and an entire industry of climate evangelists telling us that ‘the science is settled’, Peter Ridd took on the fight for the right for freedom of speech and for intellectual freedom.

And he won.

And he won for all of us.

Thank you for your support for Peter and the work of the Institute of Public Affairs.