The limits of intellectual freedom: High Court dismisses appeal brought by former James Cook University academic

Summary

The High Court of Australia unanimously dismissed an appeal brought by former professor of James Cook University (JCU), Dr Peter Ridd, who had argued that the disciplinary action taken against him by JCU for breaching the Code of Conduct was contrary to his right to intellectual freedom afforded by the enterprise agreement.

While the Court held that the intellectual freedom protected by clause 14 of JCU's enterprise agreement was "not a general freedom of speech", it did find that the objective of intellectual freedom must allow expression that departs from the civil norms of courtesy and respect – as desirable as these norms may be.

However, despite this finding, Dr Ridd's case ultimately failed on the basis that he was dismissed not only for breaching the Code of Conduct by making disrespectful comments regarding the work of his colleagues, but also for violating confidentiality obligations, which the Court held did not limit his intellectual freedom.

Key takeaways

Although the High Court unanimously dismissed Dr Ridd's appeal against the termination of his employment, the decision is undoubtedly being considered a win by supporters of academic freedom of expression, with the Court finding that policy or code of conduct obligations that purport to prohibit robust debates and polemics detract from intellectual freedom.

While the High Court's decision specifically related to the correct interpretation of the James Cook University Enterprise Agreement 2013-2016 (EA), there are some key takeaways for employers, both in the tertiary education sector and more generally:

• A code of conduct and enterprise agreement do not necessarily operate side by side. If the enterprise agreement specifically carves out constraints to intellectual freedom, an employer cannot rely upon open-ended undertakings in a code of conduct to discipline an employee who exercises intellectual freedom.
• Enterprise agreement provisions seeking to preserve rights such as intellectual freedom should be carefully drafted and clearly articulate the standards of behaviour employees should comply with when exercising that freedom.

Background to proceedings

Dr Ridd was employed by JCU as a professor for 27 years until his employment was terminated in 2018. At the date of his termination, Dr Ridd was the head of physics at JCU.

The JCU enterprise agreement

Clause 14.1 of the EA provides that:

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

Clause 14.3 of the EA further provides that:

"All staff have the right to express unpopular or controversial 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."

Separately, JCU's Code of Conduct requires all JCU employees to "treat fellow staff members, students and members of the public with honesty, respect and courtesy, and have regard for the dignity and needs of others."

Clause 13 of the EA notes that the Code of Conduct "establishes the standard by which staff and volunteers conduct themselves towards others and perform their professional duties" but that it is "not intended to detract from Clause 14, Intellectual Freedom."

Censures and termination of employment

In April 2016, JCU issued Dr Ridd with a formal censure after it found he had breached the Code of Conduct for sending an email to a journalist that stated "bad science" and misleading photographs were circulating about the effect of climate change on the Great Barrier Reef. Dr Ridd further told the journalist that two stakeholders of JCU "should check their facts before they spin their story".

In November 2017, JCU issued Dr Ridd with a second and final censure after JCU found that Dr Ridd had breached the Code of Conduct by making comments during a Sky News interview, which JCU found damaged JCU's reputation and denigrated and damaged the reputation of its stakeholders.

The final censure also concerned Dr Ridd's failure to maintain confidentiality regarding the disciplinary process, contrary to the obligation imposed by clause 54.1.5 of the EA.

In May 2018, JCU terminated Dr Ridd's employment for serious misconduct under the EA, including for breaching the Code of Conduct by failing to treat others "with respect and courtesy" in his public discussion of his research.

Litigation history

Dr Ridd commenced proceedings in the Federal Circuit Court of Australia against JCU alleging that its actions and the termination of his employment contravened the EA and section 50 of the Fair Work Act 2009 (Cth) (FW Act). Dr Ridd did not dispute that the conduct occurred and admitted that it would constitute misconduct or serious misconduct; however he argued that his conduct was an exercise of the intellectual freedom protected by clause 14 of the EA and therefore could not be the subject of sanctions under the Code of Conduct.

The primary judge concluded that 13 actions taken by JCU against Dr Ridd were contrary to the EA and, accordingly, in contravention of the FW Act.¹ JCU was ordered to pay Dr Ridd over $1 million in compensation and pecuniary penalties of $125,000.²

On appeal, the Full Court of the Federal Court concluded that none of the actions taken by JCU against Dr Ridd were contrary to the EA.³

In February 2021, Dr Ridd was granted leave to appeal to the High Court.

Issues for determination by the High Court

In considering the admissions made by Dr Ridd regarding his conduct, the issue before the High Court was relatively confined, being whether his impugned conduct was an exercise of intellectual freedom, in which case it would be permissible under the EA. If not, it would be subject to the disciplinary provisions under the Code of Conduct. The High Court needed to resolve the conflict between the intellectual freedom of staff to debate, criticise and express controversial views, including to express disagreement with the decisions of JCU, as enshrined in clause 14 of the EA, and each of:

1. the undertakings in the Code of Conduct to treat others with respect and courtesy; and
2. the confidentiality requirements concerning JCU's disciplinary processes imposed by clause 54.1.5 of the EA and the Code of Conduct.

High Court dismisses Dr Ridd's appeal

The High Court unanimously dismissed Dr Ridd's appeal.⁴

In relation to the Code of Conduct undertakings regarding respect and courtesy

The Court held the intellectual freedom protected under clause 14 of the EA was not a general freedom of speech. Rather, the exercise of intellectual freedom was subject to the constraints contained in clause 14 itself – that staff respect the rights of others; do not harass, vilify, bully or intimidate those who disagree with their views; and that if staff disagree with JCU's decisions and processes, they raise their concerns through applicable processes and give reasonable opportunity for such processes to be followed.

However, the Court held that the exercise of intellectual freedom was not constrained by other undertakings in the Code of Conduct, such as "respect" or "courtesy", as this would have the effect of clause 14 serving no substantive purpose. The Court defined intellectual freedom as the right to investigate, report on and debate issues within an area of specialist knowledge, which has the inherent potential to become controversial, contentious and at times, acrimonious. Accordingly, the Court found that Dr Ridd's criticisms of his peers fell squarely within the scope of intellectual freedom.

In relation to the Code of Conduct undertakings and clause 54.1.5 obligation regarding maintaining confidentiality

The Court held that the intellectual freedom under clause 14 does not provide protection to staff who breach the Code of Conduct by disagreeing with JCU's decisions or processes where the expression of disagreement involves a failure to respect the confidentiality of the parties involved, or the confidential information gathered, in breach of the obligation imposed by clause 54.1.5 and the Code of Conduct.

The Court observed that the confidentiality provisions in clause 54.1.5 serve the legitimate interests of all parties involved in JCU's dispute resolution processes and these processes are not inconsistent with Clause 13 Code of Conduct or Clause 14 Intellectual Freedom.

As Dr Ridd had conceded that the breaches of confidentiality amounted to serious misconduct under the Code of Conduct, the Court determined it had no option but to find that JCU was entitled to apply the disciplinary sanctions contemplated by the Code of Conduct.

Disciplinary action taken against Dr Ridd

In respect of the disciplinary action taken against Dr Ridd, the Court held:

• the first censure was unjustified as the opinions expressed by Dr Ridd fell within the scope of clause 14.3 of the EA, as those views were honestly held by Dr Ridd within his academic expertise. Dr Ridd's conduct therefore could not amount to misconduct or serious misconduct for violating the Code of Conduct.
• the final censure was justified only insofar as it relied upon Dr Ridd's expressions of opinion unrelated to his academic expertise, and his repeated failure to comply with his confidentiality obligations.
• the decision to terminate Dr Ridd's employment was justified as it was supported by 18 findings made by JCU that Dr Ridd engaged in serious misconduct outside the scope of the intellectual freedom protected by clause 14.

¹Ridd v James Cook University [2019] FCCA 997.

²Ridd v James Cook University (No 2) [2019] FCCA 2489.

³James Cook University v Ridd (2020) 278 FCR 566.

⁴Ridd v James Cook University [2021] HCA 32.