Do employees have a right to free speech in Australia?

Introduction

There's been a lot of publicity recently over Israel Folau and his problems with Rugby Australia over some controversial views about homosexuals and others he posted on social media.

Some commentators have characterised that dispute as a contest between, on the one hand an employee's right to religious freedom and freedom of speech, and an employer's right to require its employees not to damage its business or to bring it into disrepute by publishing controversial views. While the rugby field might seem a long way from the cloistered corridors of academia, a recent decision of the Federal Circuit Court of Australia (Ridd v James Cook University) makes clear the questions of intellectual freedom and free speech in Australia are significant issues for employers across the higher education sector.

The Court found that James Cook University took unlawful action by censuring, making adverse findings against and ultimately dismissing Professor Ridd. The University's actions were held to be inconsistent with the guarantee of intellectual freedom provided in the University's Enterprise Agreement.

Background

Professor Peter Ridd was the head of physics at the University from 2009 until 2016. At the time of his dismissal, Professor Ridd had managed the University's marine geographical laboratory for 15 years. Professor Ridd was subject to the terms of the University's Enterprise Agreement and Code of Conduct.

The Enterprise Agreement provided that the University was committed to acting in a manner consistent with the protection and promotion of intellectual freedom, which included the right to participate in public debate and express unpopular or controversial views.

The Enterprise Agreement also contemplated the existence of a Code of Conduct, provided that any such Code was not intended to detract from the intellectual freedom otherwise afforded. The University's Code of Conduct went further than this, including a requirement that any exercise of freedom of expression had to be lawful and respectful of the rights of others.

Historically, Professor Ridd had expressed concern with the quality of scientific research published regarding the state of the Great Barrier Reef. From December 2015, Professor Ridd took a number of steps to publicly voice those concerns, including by:

• contacting and providing commentary to a News Limited journalist;
• publishing essays on the topic; and
• participating in a television interview with prominent broadcaster Alan Jones on Sky News.

Professor Ridd's criticisms were not limited to the research itself, but, in the University's view, extended to a direct attack of the University and its associated entity, the Australian Research Council Centre of Excellence for Coral Reef Studies (CoE). In his interview with Sky News, Professor Ridd went so far as to suggest that scientific institutions including CoE could 'no longer be trusted' to publish reliable, objective research into the health of the Great Barrier Reef.

In response to Professor Ridd's actions, the University instigated a disciplinary process for alleged misconduct. Professor Ridd was notified of his obligation to maintain confidentiality throughout this disciplinary process.

In October 2017, a further allegation was made by the University that Professor Ridd had failed to maintain confidentiality throughout the disciplinary process. Professor Ridd subsequently started a "Go Fund Me" page asking for donations for legal expenses and published material regarding the University's disciplinary process. The University also became aware of a number of news articles in which it was clear that Professor Ridd had provided comment as well as a group email chain with other academics in which Professor Ridd suggested that he had "offended some powerful organisations who don't like being challenged, and rather than debate the case, they just resort to threats and complaints".

The University's ultimate response to Professor Ridd's actions was expansive and included:

• 17 findings of misconduct starting with Professor Ridd's conduct from December 2015. The findings of misconduct were primarily based on alleged breaches of the Code of Conduct, in particular Professor Ridd's failure to exercise freedom of expression with a "respect for the rights of others";
• multiple censures of Professor Ridd, including:
  • a direction that any public comment be expressed in a "collegial manner that upholds the University and respects individuals";
  • a direction that Professor Ridd "not make any comment or engage in any conduct that directly or indirectly trivialises, that arises or parodies the University taking disciplinary action"; and
  • multiple confidentiality directions in response to Professor Ridd publishing material regarding the University's disciplinary process.

On 2 May 2018, the University terminated Professor Ridd's employment in light of the substantiated findings of misconduct.

The University's position

On application by Professor Ridd, the Court was asked to determine whether or not the University's findings and numerous directions censuring him were unlawful, in light of the broad "guarantee" of intellectual freedom afforded under clause 14 of the Enterprise Agreement.

The University maintained that its decision to terminate Professor Ridd's employment was consistent with its findings that his conduct constituted a breach of the Code of Conduct.

The University submitted that any exercise of intellectual freedom as provided by the Enterprise Agreement, in the absence of any fundamental constitutional right to such freedom in Australia, must be exercised in accordance with the Code of Conduct and, in particular the requirement to "respect the rights of others". Regarding the interrelationship of the Enterprise Agreement and the Code of Conduct, the University submitted:

• clause 14 was not a statement as to the commitment of the University, but a direction that intellectual freedom, permitted by clause 14, would be exercised in accordance with the Code of Conduct; and
• a staff member could still breach the Code of Conduct if they exercised intellectual freedom in a manner which went beyond that expressly permitted by clause 14.

The Decision

The Court ultimately found in favour of Professor Ridd, determining that all findings of misconduct and attempts at censure were unlawful, on the basis that they were contrary to Professor Ridd's rights pursuant to clause 14 of the Enterprise Agreement. The Court stepped carefully through the relationship between the Enterprise Agreement and the Code of Conduct in analysing Professor Ridd's conduct, finding that:

• the Enterprise Agreement, in contemplating the existing of a Code of Conduct, made plain that any such Code was not to detract from the intellectual freedom afforded by clause 14;
• it was incongruous to suggest that the Code of Conduct, which could be altered by the University, could override a clause in the Enterprise Agreement;
• the University's submission that a breach of the Code of Conduct meant the exercise of intellectual freedom was not covered by clause 14 was "around the wrong way". Rather, the correct interpretation was that, if any exercise of intellectual freedom went beyond clause 14, then it would not, by definition, be an exercise of freedom contemplated by the provisions of that clause. However, if a person were objectively to breach the Code of Conduct but the action was one that was done in the proper exercise of the rights under clause 14, then there could be no breach of the Code of Conduct;
• in respect of confidentiality directions, there was no power at common law or in the EA which overrode the specific rights given to staff members pursuant to clause 14; and
• the direct attempts to censure and limit Professor Ridd's public comment and "satire" were also contrary to the rights afforded under clause 14.

Intellectual and academic freedom in Australia - where to from here?

The Court went to great pains in Ridd to clarify that the decision was reached based on construction of the University's Enterprise Agreement, and that it was not a case concerning freedom of speech or the exercise of intellectual freedom generally. It is significant that, while approaching the matter as an interpretation issue, the Court nevertheless made significant comment as to the breadth of intellectual freedom in higher education institutions stating:

"In the search for truth, it is an unfortunate consequence that some people may feel denigrated, offended, hurt or upset. It may not always be possible to act collegiately when diametrically opposed views clash in the search for truth".

It is not difficult to see how other higher education institutions throughout Australia that have similarly codified the right of employees to "speak their mind" may now be carefully examining the implications of that right.

Like that of James Cook University, each enterprise agreement for Australia's "Group of 8" universities contains similar provisions guaranteeing the practice of intellectual freedom for its academics. While, in light of the decision in Ridd, employers must approach such clauses with renewed care, the case itself does not support the proposition that employees are "untouchable" where they characterise their comments as exercises of intellectual freedom.

Deciding what to do when an employee has made concerning comments requires an objective consideration of the comments themselves in the context of the freedom afforded. Particular consideration should be given to the following questions:

1. does your intellectual freedom clause or broader enterprise agreement contain any limitation on the freedom granted? Respecting the court's finding in Ridd regarding the primacy of an enterprise agreement over a code of conduct, first recourse should always be to the wording of the agreement to determine if an employee's conduct or comments may have contravened any relevant limitations. It is interesting to note that a sub-clause to this effect existed in the University's Enterprise Agreement, which required Mr Ridd to "respect the rights of others"; and

2. does the nature of the employee's actions or comments otherwise take them beyond the scope of the freedom afforded? If this is the case, it will likely cease to be a question or whether or not the employee has breached the provisions of the enterprise agreement, as the agreement itself will not apply to such behaviour, leaving the employee open to standard investigation and disciplinary processes.

Another case currently before the Federal Court involving the University of Sydney and the NTEU about the dismissal of a lecturer who superimposed an image of a swastika on an Israeli flag in teaching materials and social media posts is also likely to raise the "academic freedom" defence. (NTEU & Anor v The University of Sydney & Anor NSD553/2019).

Identifying just where the fine line exists between exercising academic freedom and misconduct warranting disciplinary action such as dismissal, is likely to continue to be a challenging exercise for Australian higher education institutions for some time.