In 2019, Murdoch University management sued one of their own academic staff members for damages after Associate Professor Gerd Schroeder-Turk publicly expressed concern over the welfare of international students and admissions standards at the University. The action was withdrawn in June of last year, following a widespread backlash from across the Union and Australian Higher Education sectors.
The last several years have seen a number of worrying attempts to curtail the exercise of academic freedom in Australian Universities. Beginning in 2016, James Cook University management began disciplinary action that resulted in the dismissal of Professor Peter Ridd. Disciplinary action was mounted in response to the manner in which Professor Ridd expressed his views in relation to the quality assurance systems used in assessments of the environmental health of the Great Barrier Reef. Professor Ridd successfully challenged his dismissal in 2019, with this decision itself over-turned on appeal by James Cook University management to the Federal Court in July 2020.
Both of these instances have, explicitly or implicitly, resulted from management in these universities relying on codes of conduct that violate the principles of academic freedom because they limit the capacity of academics to freely discuss research or university governance. The actions have been motivated, at least in part, by a wish to contain financial or reputational damage that can result from an academic exercising their right to express an unpopular opinion, including in relation to the operation of their institution. This motivation, in turn, is underlain by the failed attempt to operate Australian Universities narrowly as businesses rather than as institutions with a public mandate to act impartially, without fear of censorship or retribution, from within or without.
The Federal Court ruled most recently non-unanimously in favour of James Cook University (two in favour, one in dissent) in upholding the dismissal of Professor Ridd. In doing so, the Federal Court tacitly upheld the contention by the management of James Cook University that academic freedom is a ‘so-called right’ and, by implication, not one of the very principles upon which a university is founded. As a result, the Full Federal Court’s decision in James Cook University v Ridd  FCAFC 123 leaves Australian academics vulnerable to punitive actions under vaguely expressed Codes of Conduct, which interfere with academic freedom.
Although the majority of the Court refused to consider it, academic freedom has a long history that reveals a strong consensus on three core principles: freedom of research and teaching; institutional autonomy and a freedom to criticise university governance. These elements of academic freedom have been recognised internationally in the UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel and in Australia in the Report of the Independent Review of Freedom of Speech in Australian Higher Education Providers as well as by the Australian Association of University Professors (AAUP).
In light of these well-established principles, there are clearly some applications of the James Cook University Code of Conduct that would threaten academic freedom. The Code requires that academics act in a manner that upholds ‘the good reputation of the University’ and treat fellow academics with ‘respect and courtesy’. There will be occasions on which academics, in exercising their academic freedom, may inevitably breach these provisions. As the dissenting judge pointed out, an academic who makes a good faith accusation of fraud by another academic will almost inevitably act without ‘respect and courtesy’. Equally, it is difficult to see how an academic could criticise a university that failed to respect academic freedom without damaging the university’s reputation.
The potential for vaguely expressed Codes of Conduct to threaten the principle of academic freedom and freedom of speech was recognised by the Report of Independent Review of freedom of Speech in Australian Higher Education Providers. Unless, the Full Federal Court’s decision is reversed on appeal, there is an urgent need for Australian universities to clarify and limit their Codes of Conduct to better protect academic freedom and freedom of speech. Professor Ridd has been given leave to appeal the decision of the Federal Court in June 2021.
The importance of academic freedom cannot be overstated. Academic freedom is essential for the exercise of the academic method upon which the daily life of a university depends. In contrast, university management in the fulfilment of its subsidiary functions is not beholden to the academic method and thus cannot legitimately issue codes of conduct that limit academic freedom.