In around May 2021, a Full Court of the Federal Court will determine whether the University of Sydney’s intellectual freedom clause in its enterprise agreement creates an enforceable right and, if so, whether the dismissal of an academic with more than 20 years employment breached its enterprise agreement.

Dr Tim Anderson’s employment was terminated after, among other things, he superimposed a swastika on an Israel flag in teaching materials and social media, and had previously posted photos which, according to the University, incited racial hatred.

In his defence to the various allegations, Dr Anderson relied on the intellectual freedom clause set out in the University of Sydney enterprise agreement, which provides that academic staff could express unpopular or controversial views provided they did not engage in harassment, vilification or intimidation in doing so. The University did not accept Dr Anderson’s submissions on the intellectual freedom clause and terminated his employment for contravening its code of conduct.

The Federal Court found that the intellectual freedom clause did not create an enforceable right and Dr Anderson was not immune from disciplinary action because he was exercising his right to academic freedom. Any exercise of intellectual freedom was to be done so with the highest ethical, professional and legal standards, the Court found, and ultimately determined the University did not breach its enterprise agreement.

In June 2021, the High Court will also consider the issue of academic freedom, in particular the balance and relationship between academic freedom and codes of conduct. In this matter, the High Court is being asked by Professor Peter Ridd, a former academic at James Cook University, to find that JCU’s code of conduct is subservient to the rights and protections given to academics by JCU’s intellectual freedom clause in its enterprise agreement.

Professor Ridd was employed by JCU for more than 27 years and his employment was terminated after he was found to have engaged in serious misconduct by, among other things, failing to act “in the collegial and academic spirit” and bringing JCU into disrepute. Part of his misconduct was appearing on Sky News and claiming that scientific research in relation to global warming and coral bleaching being published by JCU’s partners could not be trusted.

Initially, the Federal Circuit Court found that Professor Ridd’s comments and subsequent actions (such as making comments in The Australian and publishing flyers around campus) were protected by his right to intellectual freedom. JCU appealed that finding and a Federal Court majority found Professor Ridd’s professional academic opinions were constrained by the standards of behaviour imposed by the JCU code of conduct.

At the heart of his case, Professor Ridd argues, is his right to speak out publicly and critically on matters within his field of expertise. Professor Ridd says JCU, and the Federal Court majority, got it wrong and he should be able to express his opinions unrestrained by the University.

The tension between academic freedom and codes of conduct will be ventilated in both matters and no doubt universities are looking to both the High Court and the Federal Court for guidance.

Amongst this backdrop, the Higher Education Support Amendment (Freedom of Speech) Act 2020 was recently passed by the Federal Parliament, providing stronger protections for academic freedom. That Act amends the Higher Education Support Act 2003 to provide a new definition of academic freedom and amending policy requirements so that providers must now have a ‘freedom of speech and academic freedom’ policy – as distinct from the previous requirement for a policy that ‘upholds free intellectual inquiry in relation to learning, teaching and research’. We expect further developments in this regard as the Commonwealth Government looks to work with universities to adopt the model code for the protection of freedom of speech and academic freedom recommended by the former High Court Chief Justice Robert French.

The Maddocks Education Sector team work across the education industry, offering legal and advisory services to universities, colleges, schools, government and regulators, as well as senior executives and in-house counsel. We will continue to update you as these two cases are dealt with by the Courts and other issues develop within the industry.