By and -

Snapshot

  • Intellectual Freedom protected in an enterprise agreement is not general ‘freedom of speech’.
  • Where a right to intellectual freedom is provided for in an enterprise agreement, it will be reasonable to limit this freedom to the employee’s specific field of expertise.
  • The rights established within an enterprise agreement are unlikely to be constrained by corporate policy, unless the intended interrelationship between the documents is couched in clear terms within the agreement itself.

In our article ‘Freedom of Speech in a master/servant relationship’ (56 Law Society of NSW Journal, June 2019, 80-82), we discussed the first instance Federal Court decision in Ridd v James Cook University [2019] FCCA 997. At the time, the decision touched on a number of sensitive issues, but ultimately was expressed in the decision to turn on a narrow one – the proper construction of an ‘Intellectual Freedom’ clause in the James Cook University Enterprise Agreement 2013 (‘Agreement’). The first instance decision found that James Cook University (‘University’) had breached the Intellectual Freedom provisions of the Agreement on 13 occasions, and Dr Peter Ridd was awarded nearly $1.2 million in compensation.

Two and a half years later, and following the Full Federal Court’s finding on appeal that the University had not acted contrary to the Agreement, the High Court adopted a different analysis in determining the scope of the intellectual freedom protected by the Agreement. In its decision handed down on 13 October 2021 in Ridd v James Cook University [2021] HCA 32, the High Court narrowed the capacity of the University’s Code of Conduct (‘Code’) to constrain the intellectual freedoms in the Agreement. It held that the only constraints on the intellectual freedom were those contained in the intellectual freedom clause itself. Ultimately, though, Dr Ridd’s appeal was dismissed.

The decision in Ridd does not lay down any hard and fast rules of general application, being squarely cast in the context of university and the intellectual freedoms contained in the Agreement applying to its staff. It does, however, provide some insight into the interrelationship between rights in an enterprise agreement and other corporate policies intended to regulate employee conduct and the employee-employer relationship.

Background

A short reminder of the background facts. Dr Ridd was a marine physicist employed by the University for 27 years. During his tenure, Dr Ridd managed the University’s Marine Geophysics Laboratory for 15 years, and from 2009-2015 was the Head of Physics.

In December 2015, Dr Ridd emailed a journalist accusing a marine science research institution (with which University had a research association) and an environmental regulator of ‘grossly misusing’ scientific data to prove the Great Barrier Reef had suffered serious environmental damage, asserting the institutions should ‘check their facts before they spin their story’.

Following this, Dr Ridd was censured by University (‘2016 Censure’) on the basis his remarks were in breach of respect and courtesy provisions of the Code.

Between 2016 and 2017, Dr Ridd continued to publicly criticise research concerning the state of the Great Barrier Reef which, in his view, was not scientifically robust. Dr Ridd participated in a Sky News interview where he expressed these sentiments.

The University subsequently commenced a disciplinary process for potential serious misconduct and instructed Dr Ridd to maintain confidentiality over the process. Dr Ridd, however, contacted a number of external parties regarding the process, stating ‘our whole university system pretends to value free debate, but in fact it crushes it’.

The disciplinary process concluded Dr Ridd had engaged in serious misconduct, and resulted in a second censure (‘Second Censure’).

Ultimately, following allegations of a further 18 acts of serious misconduct, the University terminated Dr Ridd’s employment in May 2018.

Issue in the proceedings

Dr Ridd did not dispute any of the conduct alleged, nor did he dispute that each of the instances of conduct amounted to serious misconduct. Instead, Dr Ridd asserted his actions were exercises of the ‘intellectual freedom’ provided for in the Agreement, and hence could not be a serious breach of the Code.

Relevantly, clause 14 (Intellectual Freedom) of the Agreement provided:

‘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.

….

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’.

Clause 13 (Code of Conduct) of the Agreement provided:

‘The parties to this Agreement support the Code of Conduct as it establishes the standard by which the staff and volunteers conduct themselves towards others and perform their professional duties on behalf of JCU… The parties note that the Code of Conduct is not intended to detract from Clause 14, Intellectual Freedom’.

The Code itself set out a number of specific ‘undertakings’, including requirements to:

  • ‘maintain appropriate confidentiality regarding University business’;
  • ‘comply with any lawful and reasonable direction given by someone who has authority to give that direction’;
  • ‘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’; and
  • ‘the right to freedom of expression, provided that our speech is lawful and respects the rights of others’.

The two issues for determination before the High Court were:

  1. whether the ‘intellectual freedom’ provision of the Agreement was to be qualified by the undertakings in the Code, particularly those concerning ‘respect’ and ‘courtesy’; and
  2. whether the ‘intellectual freedom’ provision of the Agreement was to be constrained by the confidentiality requirements concerning University disciplinary processes imposed by the Agreement and Code.

Dr Ridd submitted that if the Court preferred an interpretation of clause 14 that the staff member’s ‘intellectual freedom’ could not be constrained by the relevant provisions of the Code, his conduct was protected by the Agreement.

‘Intellectual freedom’ and ‘respect’

The Court accepted Dr Ridd’s submission that ‘the only restrictions upon the intellectual freedom protected by clause 14 were those contained in that clause itself’, being the express and implied ‘restrictions of legality’ within the clause.

In doing so, the Court rejected University’s argument that the intellectual freedom existed alongside the Code but that ‘clause 14 was not a substantive constraint upon any undertakings in the Code’. This reading, the Court considered, would result in clause 14 serving ‘no substantive purpose’.

The Court held that Dr Ridd’s interpretation was preferred for four reasons:

  1. the language of clause 14 reflects a textual choice to incorporate, in nearly identical terms, only those specific undertakings from the Code intended to constrain the intellectual freedom;
  2. the interpretation reflected the ordinary meaning of the relevant provisions of the Agreement dealing with both the intellectual freedom and the operation of the Code;
  3. the context and purpose of the term ‘intellectual freedom’ (to which the Court turned its mind as the term was undefined in the Agreement) would ‘strongly militate against an interpretation that would constrain the exercise of intellectual freedom to that which is respectful and courteous’; and
  4. the University’s interpretation posed practical difficulties in determining when intellectual speech will be ‘respectful’ or ‘disrespectful’, in terms of content and delivery.

The High Court held:

‘The best interpretation of clause 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.’

However:

‘The only conduct that falls within the intellectual freedom in clause 14 is the expression of opinion within an area of academic expertise’.

‘Intellectual freedom’ and confidentiality

Turning to the second issue, the High Court rejected Dr Ridd’s argument that a conflict existed between the intellectual freedom and the undertakings in the Code regarding confidentiality and lawful reasonable directions. The High Court held these provisions related to ‘different subject matters’, and that the confidentiality obligations within the Code were reasonably necessary to protect the integrity and efficacy of University’s disciplinary processes, and the legitimate interests of those involved. The High Court observed that:

‘… the intellectual freedom protected by cl 14 of the Enterprise Agreement is not a general freedom of speech: an expression of opinion about issues or ideas must be related to a field of competence and an expression of disagreement with JCU decisions or decision making processes must be in accordance with applicable processes…’

On this basis, the High Court determined clause 14 could not protect Dr Ridd against contraventions of the Code relating to his breach of confidentiality of University’s disciplinary processes.

Applying these principles to the disciplinary actions taken by the University against Dr Ridd, the High Court concluded:

  • The 2016 Censure was inappropriately issued, as the views expressed in Dr Ridd’s email were ‘honestly held’ and within ‘his field of competence’. This reflects the Court’s finding that where an expression of opinion falls within the intellectual freedom protected by clause 14, it may not amount to misconduct for violating the Code.
  • Likewise, the Second Censure was not warranted in part, as the opinions expressed in the Sky News interview pertained to Dr Ridd’s area of academic expertise. However, the Second Censure was warranted to the extent it addressed Dr Ridd’s post-interview emails, which fell outside his ‘field of competence’, and the breaches of his confidentiality obligations.
  • Finally, the Court determined the termination itself was supported by 18 grounds of serious misconduct, being breaches of confidentiality and disparagement of University disciplinary processes, ‘none of which involved the exercise of intellectual freedom’.

Implications of decision

The Ridd decision offers insights into how Courts may be likely to interpret both the interrelationship between an enterprise agreement and other workplace policies and, more specifically, provisions regarding the exercise of intellectual freedom.

In practice, the reasoning of the High Court suggests that:

  • A right to intellectual freedom may reasonably be limited to the specific sphere of expertise of the individual purporting to exercise that right.
  • It is unlikely a Court will constrain intellectual freedom with requirements for respect and courtesy, as these constraints are not inherent in the concept of intellectual freedom.
  • However, it is legally permissible and reasonable to subordinate the exercise of intellectual freedom to obligations relating to confidentiality and due process, as these obligations fall beyond the scope of the intellectual freedom itself.
  • As such, if the rights to intellectual freedom contained within an enterprise agreement are intended to be constrained by corporate policy, the decision in Ridd suggests it will be important to ensure the interrelationship is couched in clear terms in the agreement itself.


Jack de Flamingh
is a partner and Alice Johnson is a lawyer, both at Corrs Chambers Westgarth.