Most universities in Australia have an academic or intellectual freedom clause in their Enterprise Agreement. We discuss why the High Court's recent interpretation and application of this clause is useful guidance for universities.

Key takeouts

  • The High Court has emphasised the importance and value of intellectual and academic freedoms, but did not suggest they are unqualified rights.
  • The exercise of intellectual and academic freedom will not be generally constrained by the requirements of a separate Code of Conduct.
  • Enterprise Agreement confidentiality provisions in a disciplinary process may be enforced without unlawfully restricting any right to academic or intellectual freedom.

On 13 October 2021, the High Court of Australia unanimously dismissed the appeal brought by former James Cook University (JCU) academic Dr Peter Ridd in Ridd v James Cook University [2021] HCA 32. The long-running proceedings concerned the termination of Dr Ridd's employment for serious misconduct, and the scope of the intellectual freedom clause in JCU's Enterprise Agreement (EA).

The High Court found that the rights given to members of academic staff by JCU's clause were not qualified by each and every obligation set out in the staff Code of Conduct. In particular, they were not qualified by a requirement to afford respect and courtesy to others. However, the clause did not preclude Dr Ridd from having to comply with obligations of confidentiality in JCU's disciplinary processes.

The High Court also found that the protections were available only in circumstances where a staff member was commenting within his or her area of expertise.

Dr Ridd was found to have qualified for the protection in relation to some of his actions that were relevant in the proceedings. However, in relation to his other actions he did not qualify for the protection. Although the High Court did not accept all of JCU's contentions in relation to the operation of the relevant clauses, it concluded that Dr Ridd's employment had been lawfully terminated.

The High Court's interpretation and application of JCU's clause is useful guidance for universities, both in how they approach disciplinary matters where the concept of academic freedom may be exercised, and in considering the drafting of their own clause in any upcoming bargaining. We discuss the case in detail and what this decision means for universities.

The concepts of academic and intellectual freedom

The High Court noted that the concepts of academic and intellectual freedom have a long history in universities and like institutions. In reference to the Hon Mr Robert French's independent review of freedom of speech in Australian higher education providers, the Court said that the essential elements of the concept are:

  • critical and open debate and inquiry including in the public fora, namely the 'spirit of free inquiry'; and
  • participation and discussion in university governance.

Academic/intellectual freedom and the Staff Code of Conduct

JCU submitted that the intellectual freedom clause existed alongside the staff Code of Conduct, and that the clause was not a substantive constraint upon any undertaking in the Code of Conduct. The High Court preferred Dr Ridd's alternative submission, which was that the clause chose to pick-up, in identical or nearly identical terms, only those undertakings from the Code of Conduct to which the intellectual freedom was intended to be subject. On this basis, the Court found that the exercise of intellectual freedom was not constrained to that which is respectful or courteous.

JCU's clause, like many within university EAs, included an express qualification that in exercising intellectual freedom the academic must not harass, vilify, bully or intimidate those who disagree with the views expressed. However, JCU did not contend that Dr Ridd's conduct amounted to harassment, vilification, bullying or intimidation. As a result of the High Court's conclusions with respect to the interpretation of the clause, it found that an earlier censure in 2016 was not justified. This is because the conduct that was the subject of that censure was a permitted exercise of intellectual freedom.

Importantly, the High Court emphasised the importance and value of intellectual and academic freedoms, but did not suggest they were unqualified academic rights. They are rights that can be confirmed or qualified by the particular employment arrangements.

If the academic or intellectual freedom clause in the applicable EA is clearly and expressly qualified, by reference to standards of conduct reflected in the Code of Conduct, that qualification will be legally effective. The extent to which universities decide to embed qualifications on rights of intellectual freedom in their EA will no doubt be influenced by the overall approach taken by the university to this important issue. However, the important thing is to ensure there is complete certainty in the way the EA interacts with other standards and sources of obligations, notably the Code of Conduct.

The High Court has made it clear that it does not consider the concept should be qualified by a requirement to afford respect and courtesy in the manner of its exercise. That is consistent with how the freedoms are applied in most universities, and is also consistent with the approach suggested in the French review. However, universities remain able to balance the rights against other rights, including the right to work in an environment free of bullying or harassing behaviour.

Relevance to Full Federal Court decision in NTEU v University of Sydney

The High Court's view of the interaction between an intellectual freedom clause in an EA and the staff Code of Conduct is consistent with a recent decision made in NTEU v University of Sydney [2021] FCAFC 159. This decision in the NTEU's case against the University of Sydney, on behalf of Dr Tim Anderson, was handed down by a Full Court of the Federal Court of Australia on 31 August 2021. The Full Court found that 'offence and insensitivity' are not relevant criteria for deciding whether an action was a permitted exercise of intellectual freedom.

Dr Anderson's case has been remitted to the trial judge for determination, on whether statements made on certain personal social media accounts were a valid exercise of his intellectual freedom. The trial judge will now be guided by the High Court's subsequent guidance in Ridd on the meaning and scope of the concept. However, the decisions deal with different legal frameworks and the principles in Ridd will not necessarily determine the outcome in the Anderson decision.

Academic/intellectual freedom and confidentiality

The High Court's decision provides some clarity for universities regarding the interaction between intellectual freedom rights, and the requirement on employees to maintain confidentiality of disciplinary procedures.

During the disciplinary process engaged in by JCU against Dr Ridd throughout 2016 and 2017, he embarked on a course of conduct where he deliberately disclosed information to third parties about that process. This included providing information to journalists and publishing correspondence from JCU on his website.

JCU's Code of Conduct imposed requirements on staff to maintain confidentiality regarding university business and to, as far as it related to confidentiality, comply with lawful and reasonable directions. Dr Ridd submitted that these requirements could not restrict his intellectual freedom rights provided by the EA, particularly his rights to express opinions about the operations of JCU and to express his disagreement with JCU decisions and processes.

However, as is common, the EA also contained confidentiality requirements specifically in relation to disciplinary procedures. These require all parties involved in the management of serious misconduct processes to maintain confidentiality, subject to various exceptions that did not apply in this case.

Dr Ridd engaged in the conduct despite JCU issuing him several written directions, requiring him to maintain confidentiality over the disciplinary process. The directions required him to not disclose the matter to any person, other than his lawyer or family, including directing him to the confidentiality requirements of the EA. JCU considered Dr Ridd's actions to be serious misconduct, and it became one of the reasons why Dr Ridd's employment was ultimately terminated.

On appeal in the High Court, Dr Ridd did not challenge this finding. Therefore, the High Court did not have to determine if his various confidentiality breaches did, in fact, amount to serious misconduct.

The High Court found, contrary to Dr Ridd's submission, that there was no conflict between the intellectual freedom rights in the EA and the requirement to maintain confidentiality of JCU's disciplinary processes. Notably, the High Court observed that the confidentiality provisions did not just concern themselves with the interests of Dr Ridd, but all parties to a disciplinary process. This included any other employee to whom the confidential information may relate, such as a complainant, and the interests of JCU itself in maintaining the confidentiality of its private procedures.

What does this aspect of the decision mean for universities?

The High Court's decision provides some assurance that, in certain cases, a university engaged in a disciplinary process may impose confidentiality requirements – without unlawfully restricting any right to academic or intellectual freedom provided by a clause in an EA.

However, JCU's confidentiality requirements were stated in its EA. While such clauses are common, they are not present in all university EAs. It remains to be seen how a court would consider the same situation, if the source of the confidentiality requirement was simply a direction from the employer to the employee. This includes whether a court would consider such a direction to be reasonable and lawful, in the context of a disciplinary process arising from an actual or purported exercise of academic freedom. To reduce uncertainty and to protect the interests of other staff and the university itself – which the High Court noted is the key function of such a clause – it is prudent to include express EA provisions regarding the confidentiality of disciplinary processes.

Despite useful guidance from the High Court on this concept, any disciplinary matter involving an actual or purported exercise of academic freedom will involve legal complexity and turn on its particular facts.