Flat White

High noon for academic freedom at the High Court

17 June 2021

4:00 AM

17 June 2021

4:00 AM

The views expressed in this piece are those of the author and do not necessarily represent the views of Curtin University. 

One of the most famous sayings attributed to the great St Augustine of Hippo has as much relevance today as it did in the early fifth century AD:  

Hope has two beautiful daughters. Their names are Anger and Courage; anger at the way things are, and courage to see that they do not remain the way they are. 

Next Wednesday, 23 June, the High Court will hear the final appeal by Professor Peter Ridd against his sacking by James Cook University. I don’t know Professor Ridd, but I think I speak for many when his anger at his treatment led him to display incredible courage in challenging its legality. This challenge has drawn phenomenal support from across the country. As many readers may be aware, Professor Ridd’s battle with James Cook University began in December 2015 when an academic colleague of his filed a complaint against him for speaking to a journalist about seemingly unreliable research coming from the university. Professor Ridd was disciplined and eventually fired for pointing out a failure in something that universities should pride themselves on: academic and intellectual rigour.   

That the High Court has agreed to hear this matter – applications to appeal to this country’s highest court can only be made by special leave – and few are granted, would give you an idea of the stakes involved. With regard to granting special leave, Section 35A of the Judiciary Act 1903 (Cth) states:  

[T]he High Court may have regard to any matters that it considers relevant but shall have regard to:  

(a) whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law:  

(i) that is of public importance, whether because of its general application or otherwise; […] 


(b) whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates. 

As this piece in the Nine newspapers from 31 May3 points out, if JCU wins in the High Court: 

It would be a boon to universities, which have to contend with staff spruiking views on the bleeding edge of academic discourse — or, depending on one’s view, outside it.

The tertiary education sector is experiencing an identity crisis of sorts at an important juncture for several reasons. As summarised very well by Paul Morrisey in his Flat White piece last week, in a speech given at the Universities Australia Higher Education Conference, Federal Education Minister Alan Tudge stated that the primary goal of universities is education in pursuit of the truth. The Minister stated that it is the duty of universities to protect and promote freedom of academic enquiry and debate.   

You cannot pursue truth without freedom of expression. You cannot create knowledge without freedom of academic inquiry,” he said, describing these as underpinning “the very essence of a university. 

 Tudge returned to this topic only yesterday when he Tweeted:

Free speech goes to the very essence of a university. You cannot pursue truth without freedom of expression. You cannot create knowledge without freedom of academic inquiry. Our free speech code is designed to protect these key principles.

Students cannot be shielded from opinions or beliefs they may find uncomfortable or do not agree with. We have seen this in numerous ways via “reviews of courses” recommending that they be made more “meaningful and relevant”. For that read dumbing-down, decolonising, indigenising and/or wokeifying course content, since Western Civilisation is so bad that it is what gave us universities and the tradition of scholarship, research and intellectual debate in the first place.

Wartime prime minister John Curtin may have prophetically alluded to the current intellectual malaise in universities in a piece entitled ‘The Views of Labour’, published in the West Australian on 16 April 1932, when he wrote: 

The great University should find its heroes in the present; its hope in the future; it should look ever forward; for it the past should be but a preparation for the greater days to be. 

Disagreement is not settled by censorship, destroying or disowning the past, or by imposing penalties for breaching nebulously drafted “codes of conduct”, but through engagement in active and rigorous debate. This is a notion, as counsel for Professor Ridd argue in their submissions, that dates back to Socrates’ defence in Plato’s Apology 

[I]t lies at the heart of a university’s mission by allowing employees to engage in intellectual pursuits – thereby pursuing the search for truth – without fear of reprisals. 

Another interesting point made by the Minister was that universities were “initially established for one purpose: to educate Australians”. Indeed, the statutes establishing two of the universities I have worked at provide that the institutions are established for the benefit of the people of Western Australia first. 

Thus Australian universities find themselves at a critical juncture. Deprived of lucrative full-fee paying international students, and being challenged on their ability to censor debate, it is high time they returned to their core business: educating young Australians in an environment where debate is encouraged, ideas are freely exchanged, academic freedom is upheld and valued, and intellectual rigour of research is considered paramount. As we eagerly await the High Court’s decision, I conclude with further words of wisdom from St Augustine: It is no advantage to be near the light if the eyes are closed.  

 Dr Rocco Loiacono is a senior lecturer at Curtin University Law School. 

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