Ridd v James Cook University [2021] HCA 32

Background

An academic at James Cook University (JCU), Dr Peter Ridd, commenced proceedings against JCU for contravention of a term of an enterprise agreement contrary to s 50 of the Fair Work Act 2009 (Cth). The proceedings arose from comments that Ridd made in an email to a journalist in 2015, referring to other scientific organisations misusing data to suggest that the Great Barrier Reef had suffered severe damage. JCU found that the remarks breached its Code of Conduct for failure to treat those who hold different views with respect and courtesy, and took administrative action against him, culminating in the termination of his employment in 2018.

Ridd relied upon clause 14 of the Enterprise Agreement, which provides for protection of intellectual freedom. Clause 14 provides, in part:

  1. INTELLECTUAL FREEDOM

14.1 JCU is committed to act in a manner consistent with the protection and promotion of intellectual freedom within the University and in accordance with JCU’s Code of Conduct.

14.2 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;
  • Express opinions about the operations of JCU and higher education policy more generally …

14.3 All staff have the right to express unpopular or uncontroversial 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 …

14.4 JCU acknowledges the rights of staff to express disagreement with University decisions and with the processes used to make those decisions. Staff should seek to raise their concerns through applicable processes and give reasonable opportunity for such processes to be followed …

Relevantly, clause 13.3 of the Enterprise Agreement provided:

The parties note that the Code of Conduct is not intended to detract from Clause 14, Intellectual Freedom.

The primary judge in the Federal Circuit Court found in Ridd’s favour and awarded him compensation and ordered the payment of pecuniary penalties by JCU. A majority of the Full Court of the Federal Court (Griffiths and SC Derrington JJ) found in favour of JCU that there had been no contravention by JCU of clause 14.

The scope of “intellectual freedom”

The High Court found that neither the primary judge’s nor the Full Court’s positions could be entirely accepted. The Court said that the intellectual freedom in clause 14 was not a general freedom of speech and an expression of opinion must be related to a field of competence, and that an expression of disagreement with JCU decisions or processes must be in accordance with applicable processes: [5].

The Court accepted the appellant’s submission that the intellectual freedom protected by clause 14 is only constrained by the restrictions contained in clause 14 itself. It rejected JCU’s submission that the intellectual freedom existed alongside the Code of Conduct but was not a substantive constraint upon any undertaking contained in it. The effect of JCU’s submission, the High Court said, was that clause 14 would serve no substantive purpose: [21].

The interpretation of clause 14 favoured by the High Court was to be preferred for four reasons:

  1. the terms of clause 14 reflect a textual choice to “pick up” only those Code undertakings to which the freedom was intended to be subject;
  2. the appellant’s interpretation was supported by the ordinary meaning of the Enterprise Agreement provisions dealing with both clause 14 and the Code of Conduct;
  3. the meaning of “intellectual freedom” was informed by its context and purpose, which strongly militate against an interpretation that would require expressions of intellectual freedom to be respectful and courteous; and
  4. JCU’s interpretation would make it difficult to draw a line between the content of speech and the manner in which it was delivered, a distinction which may not exist in practice: [22].

To allow other undertakings in the Code of Conduct outside of clause 14 to qualify the freedom would detract from clause 14, contrary to clause 13.3. Those constraints mean that intellectual freedom does not extend to the harassment, vilification, bullying or intimidation of others, but do not require the exercise of intellectual freedom to be expressed respectfully or courteously: [25], [26].

An important part of the High Court’s finding was that no significant distinction was to be drawn between “intellectual freedom” and “academic freedom”, with the Court finding that the former is a concept with a lengthy history, and includes the latter. Referring to the Honourable Mr Robert French’s review of freedom of speech in Australian Universities, the Court found that two essential elements of the concept of intellectual freedom are notions of critical and open debate and inquiry including in public fora, and participation and discussion in university governance: [29], [30].

By contrast, the majority in the Full Court had found that there was a distinction to be drawn between intellectual freedom and academic freedom, and rejected the construction put forward by Dr Ridd on the basis that it would elide that distinction: James Cook University v Ridd [2020] FCAFC 123 [94]-[97], [100].

The High Court held that best interpretation of clause 14, having regard to its text, context and purpose, is that the intellectual freedom contained in clause 14 is not qualified by a requirement to afford others respect and courtesy. The foundations of the concept of intellectual freedom were powerful reasons in support of that interpretation: [33], [64].

The Full Court in National Tertiary Education Industry Union v University of Sydney [2021] FCAFC 159 recently came to a similar conclusion in considering the intellectual freedom provisions of the University of Sydney’s Enterprise Agreement. The Court found that the right to intellectual freedom, which was a substantive right, could not be qualified by requirements in the Code of Conduct to treat others with “respect, impartiality, courtesy and sensitivity”. Jagot and Rangiah JJ noted that a lack of sensitivity could not inform the requirements of the “highest ethical, professional and legal standards” that the freedom was subject to in the context of that Agreement. Those requirements in the Code of Conduct could not remove conduct otherwise within the scope of the intellectual freedom beyond it: [242]-[243]. The matter has been remitted to the trial division for further hearing.

Confidentiality requirements in the Enterprise Agreement

In Ridd, the High Court noted that the applicable processes that must be followed in an expression of intellectual freedom included the confidentiality of disciplinary processes. Clause 54.1.5 of the Enterprise Agreement provided that, “The confidentiality of all parties involved in the management of Misconduct and Serious Misconduct processes will be respected and all information gathered and recorded will remain confidential, subject to JCU’s obligations … [as enumerated]”.

There was no conflict between this confidentiality requirement and the intellectual freedom. Clause 14 did not protect against breaches involving disagreement with JCU decisions or processes where that expression of disagreement failed to respect confidentiality. In this respect, the High Court’s finding that intellectual freedom had the same meaning as academic freedom did not result in a different finding to the majority of the Federal Court in relation to confidentiality: [37], [40], James Cook University v Ridd [2020] FCAFC 123 [97], [121] per Griffiths and SC Derrington JJ.

The High Court found that the way that Dr Ridd ran his case, on an “all or nothing” basis, was critical to the determination of the appeal. He did not contest any of the findings of serious misconduct that were made against him other than on the basis that he was entitled to the protection of clause 14. This was referred to by the High Court as a “curiosity” ([7], [9], [55]), mirroring comments made in the Full Court that Ridd’s failure to contest findings that his conduct was in breach of the Code was “inexplicable”: [97], [121].

The High Court reviewed the three decisions by which the appellant had been disciplined, and which he focused upon in his case.

In summary, only the first decision, the “2016 Censure”, was wholly unjustified by reason of clause 14 and almost none of the appellant’s conduct was protected by clause 14. Based on the way that the appeal was run, without challenging the findings on any basis other than their inconsistency with the intellectual freedom in clause 14, the outcome was that the appeal was dismissed.

Conclusion

To an extent, the outcome in Ridd v JCU turns upon the way that the case was run and the particular arguments that were advanced in the context of the provisions of the relevant Enterprise Agreement.

However, it is of note that the High Court adopted a broad view of “intellectual freedom”, consistent with historical conceptions of academic freedom, which in particular carries the consequence that the freedom is not subject to the requirement to treat others with respect and courtesy. Further, the decision will be relevant to the interpretation of intellectual freedom provisions in terms of the interplay between those provisions and other documents that might be construed as a fetter upon them, for example Codes of Conduct.

These aspects of the High Court’s decision will have implications for future similar cases involving the public expression of opinion by university staff.