Peter Ridd loses High Court appeal

Professor Peter Ridd’s appeal to the High Court over the termination of his employment by James Cook University (JCU) has been dismissed.

Professor Ridd was employed by JCU for a total period of twenty-seven years.

The Enterprise Agreement

JCU’s Enterprise Agreement came into effect in 2013.

Clause 13 relates to the Code of Conduct. It provided that:

The parties to this Agreement support the Code of Conduct as it establishes the standard by which staff and volunteers conduct themselves towards others and perform their professional duties on behalf of JCU.

13.1. The parties agree that the Code of Conduct will only be changed following consultation with the JCC.

13.2. JCU is committed to achieving and maintaining the highest standards of ethical conduct and through the Code of Conduct will ensure that staff: Seek excellence as a part of a learning community; Act with integrity; Behave with respect for others; and Embrace sustainability and social responsibility.

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

Clause 14 of the Enterprise Agreement provided that:

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; Be eligible to participate in established decision making structures and processes within JCU, subject to established selection procedures and criteria; Participate in professional and representative bodies, including unions and other representative bodies.

14.3. 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. These rights are linked to the responsibilities of staff to support JCU as a place of independent learning and thought where ideas may be put forward and opinion expressed freely.

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.

14.5. Staff, as leaders and role models to students and the wider community, must adhere to the highest standards of propriety and truthfulness in scholarship, research and professional practice.

14.6. Staff members commenting publicly in a professional or expert capacity may identify themselves using their University appointment or qualifications, but must not represent their opinions as those of JCU. The University expects that staff will maintain professional standards when they intentionally associate themselves with its name in public statements and/or forums.

14.7. Staff who contribute to public debate as individuals and not in a professional or expert capacity, must not intentionally identify themselves in association with their University appointment.

The term “intellectual freedom” was not otherwise defined in the Enterprise Agreement.

Clause 8 of the Enterprise Agreement defined “serious misconduct” to be:

Serious misconduct as defined by the Fair Work Regulations 2009 (Cth); as amended from time to time; or Any serious breach of the James Cook University Code of Conduct; (emphasis added) or Official Misconduct as defined by the Crime and Misconduct Act 2001, as amended form time to time.

Events leading up to dismissal

On 16 December 2015. Professor Ridd sent an email to a journalist suggesting that reports produced by the Great Barrier Reef Marine Park Authority and the ARC Centre of Excellence were unreliable. Professor Ridd stated in the email that those two organisations should “check their facts before they spin their story” and that if the organisations were asked about the issue, his “guess is that they will both wiggle and squirm because they actually know that these pictures are likely to be telling a misleading story – and they will smell a trap”.

JCU found that, in using the language he did in the relevant email, Professor Ridd’s conduct amounted to “Misconduct” as defined in the Enterprise Agreement in that he did not act in a collegial way, did not respect the right of others, and did not display responsibility in respecting his colleagues’ reputations, in breach of the Code of Conduct (the First Finding).

On 29 April 2016, Professor Ridd was issued with a formal censure (the 2016 Censure) and was told that, “In future it is an expectation that in maintaining your right to make public comment in a professional capacity in an academic field in which you are recognised, it must be in a collegial manner that upholds the University and individuals (sic) respect” (the First Speech Direction).

On 1 August 2017, Ridd participated in an interview with Alan Jones and Peta Credlin where he again criticised the Great Barrier Reef Marine Park Authority and the ARC Centre of Excellence.

On 2 May 2018, JCU terminated Professor Ridd’s employment for serious misconduct. The termination followed two prior censures, one on 29 April 2016, and one, described as the Final Censure, on 21 November 2017. The censures related to findings by JCU that Professor Ridd had engaged in misconduct contrary to the Code of Conduct in that he had not expressed a professional opinion in a manner consistent with his obligations under the Code of Conduct. This included by failing to act “in the collegial and academic spirit” but had denigrated a colleague (including by failing to treat a fellow staff member “with respect and courtesy”), the ARC Centre of Excellence in Coral Reef Studies (ARC Centre of Excellence), and the Great Barrier Reef Marine Park Authority (GBRMPA), that he had denigrated the University in a manner inconsistent with his obligations under the Code of Conduct, and that he had breached directions to maintain confidentiality. JCU considered that Professor Ridd’s conduct subsequent to the Final Censure amounted to serious misconduct, demonstrating a pattern of conduct intentionally designed to damage the University’s reputation and destructive of the necessary trust and confidence for the continuation of the employment relationship.

Professor Ridd commenced the proceedings in the Federal Circuit Court on 20 November 2017. 

Section 50 of the Fair Work Act 2009 (Cth) provides that:

Contravening an enterprise agreement

A person must not contravene a term of an enterprise agreement.

An enterprise agreement is a statutory artefact made by persons specifically empowered in that regard, and under conditions specifically set down by the FWA (Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; 222 FCR 152 [90]). The Full Court explained the effect of an enterprise agreement made under the FWA at [89]:

“[T]he Act does more than merely impose conditions upon, and give additional legal effect to, an agreement made between private parties. The effect of the legislation is to empower the employer and the relevant majority of its employees to specify terms which will apply to the employment of all employees in the area of work concerned. The legal efficacy of those terms will arise under statute, not contract, and … will be felt also by those who did not agree to them. Someone such as an employee subsequently taken on, who had nothing to do with the choice of the terms or the making of the agreement, will be exposed to penal consequences under s 50 if he or she should happen to contravene one of the terms. When viewed in this way, it is not difficult to share in the perception that an enterprise agreement approved under the FW Act has a legislative character.”

Judge Vasta held that the Code of Conduct is not part of the Enterprise Agreement. He acknowledged, however, that the Enterprise Agreement envisaged that there will be a Code of Conduct.

Judge Vasta found that the Code of Conduct was subordinate to cl 14 of the Enterprise Agreement, and therefore:

“If the whole of what is said objectively is an exercise of intellectual freedom, then the protections of cl.14 apply … It is only when behaviour is not covered by cl.14, that the Code of Conduct can apply”

As a result, Judge Vasta concluded that:

“The Court rules that the 17 findings made by the University, the two speech directions, the five confidentiality directions, the no satire direction, the censure and the final censure given by the University and the termination of employment of Professor Ridd by the University were all unlawful,”

The Federal Court essentially  downplayed the contemporary importance of academic freedom:

“There is little to be gained in resorting to historical concepts and definitions of academic freedom. Whatever the concept once meant, it has evolved to take into account contemporary circumstances which present a challenge to it, including the internet, social media and trolling, none of which informed the view of persons such as J S Mill, John Locke, Isaiah Berlin and others who have written on the topic. As noted by Professor Jennifer Lackey in the introduction to her book, Academic Freedom (Oxford University Press, 2018, 11), although “the protection provided by academic freedom is at least primarily from institutional censorship or retaliation, particularly that of the State and the administration”, a big question today “is whether this protection is sufficient, especially against the background of the underlying rationale of academic freedom and the ever-changing challenges posed by online activity”.”

The Federal Court then held that JCU had not contravened cl 14 of the Enterprise Agreement:

“The fact that cl 14 commits JCU to act “in accordance with” the Code of Conduct is consistent with the overall framework of the Enterprise Agreement which provides for JCU’s commitment to protect and promote intellectual freedom, appropriately for different categories of staff within the University, and in a manner consistent with the ethical principles which guide the actions of staff as articulated in the Code of Conduct.

Clause 13 and the Code of Conduct are consistent and compatible with the Enterprise Agreement. The latter informs the content of the exercise of intellectual freedom; the former regulates the manner in which that freedom may be exercised within the framework of this particular Enterprise Agreement (which, it should be noted, has now been superseded by an enterprise agreement in different terms) and this particular Code of Conduct.

JCU did not contravene cl 14 of the Enterprise Agreement in taking disciplinary action against Professor Ridd on the basis of the breaches by him of the Code of Conduct, which were not contested in the Court below, nor in requiring him to comply with the standards of behaviour prescribed in the Code of Conduct. Contrary to the conclusion reached by the primary judge, none of the First – Fourth, Sixth – Eighth, Twelfth – Seventeenth Findings, the First and Second Speech Direction, nor the No Satire Direction was unlawful.”

In relation to JCU’s alternative ground of appeal, the Federal Court held that Judge Vasta erred in holding that each of the Confidentiality Directions issued by JCU infringed Professor’s Ridd’s future exercise of intellectual freedom and so contravened cl 14 of the Enterprise Agreement.

The High Court has today dismissed Ridd’s appeal, although it did find that the 2016 Censure given to Dr Ridd was not justified:

“At the high level of principle at which this appeal was argued, the essential question is whether, in the interpretation of cl 14 of the Enterprise Agreement, the intellectual freedom should be qualified (i) by a requirement to afford respect and courtesy to others in the expression of issues and ideas in one’s field of competence and (ii) by obligations of confidentiality in relation to JCU’s disciplinary processes. The best interpretation of cl 14, having regard to its text, context, and purpose, is that the intellectual freedom is not qualified by a requirement to afford respect and courtesy in the manner of its exercise. That interpretation aligns with the long-standing core meaning of intellectual freedom. Whilst a prohibition upon disrespectful and discourteous conduct in intellectual expression might be a “convenient plan for having peace in the intellectual world”, the “price paid for this sort of intellectual pacification, is the sacrifice of the entire moral courage of the human mind”37 . The 2016 Censure given to Dr Ridd was, therefore, not justified.

“That conclusion does not affect the outcome of this appeal. The only conduct that falls within the intellectual freedom in cl 14 is the expression of opinion within an area of academic expertise and the criticism of JCU decisions and processes through applicable processes which include obligations of confidentiality. This litigation concerned conduct by Dr Ridd far beyond that of the 2016 Censure, almost none of which was protected by the intellectual freedom in cl 14. That conduct culminated in the termination decision, a decision which itself was justified by 18 grounds of serious misconduct, none of which involved the exercise of intellectual freedom. Since this appeal was run on an all-or-nothing basis, the appeal should be dismissed. There should be no order as to costs”

This is a win for JCU, although the finding that the 2016 Censure given to Dr Ridd was unjustified and the result that each party bears their own costs mean that JCU has been dealt a blow to its reputation and will not be able to recover any costs from the very expensive appeal to the High Court. But no doubt they are glad they have finally rid themselves of Professor Ridd. One of the more significant and enduring consequences of this litigation is that every Australian university has now adopted Morrison government’s free speech code.

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