Intellectual Freedom And Procedure

In Ridd v James Cook University [2019] FCCA 997 Vasta J states

Some have thought that this trial was about freedom of speech and intellectual freedom. Others have thought that this trial was about the manner in which academics should conduct themselves. Some observers may have thought that this trial was about the use of non-offensive words when promulgating scientific ideas. Media reports have considered that this trial was about silencing persons with controversial or unpopular views.

Though many of those issues were canvased and discussed throughout the hearing of this matter, this trial was about none of the above. Rather, this trial was purely and simply about the proper construction of a clause in an Enterprise Agreement [EA]. Whilst the Court acknowledges that there may be consequences that touch upon these other issues because of the Court’s construction of that clause, none of those consequences can play any part in the determination of the proper construction of that clause.

The clause in question is cl.14 of the James Cook University Enterprise Agreement. It is headed “Intellectual Freedom”. It, and it alone, is the focus of this judgement. Even though in this application, the Applicant is asking for the Court to make declarations that the Respondent breached the Enterprise Agreement and therefore contravened s.50 of the Fair Work Act 2009 (Cth) (“the FW Act”), the parties have asked me to simply rule whether certain findings and directions were lawful.

If I find that they are lawful, that will be the end of the litigation. If I find that they are unlawful, I will give the parties the opportunity to make submissions about declarations and penalty.

The Court continues

The Concept of Intellectual Freedom 

Intellectual freedom is also known as academic freedom. It is a concept that underpins universities and institutions devoted to higher learning. Obviously such institutions must have administrators that care for the governance and proper direction of the institution. However, the mission of these institutions must undoubtedly be the search for knowledge which leads to a quest for truth. In reality, intellectual freedom is the cornerstone of this core mission of all institutions of higher learning.

This is so because it allows ideas to conflict with each other; to battle and test each other. It is within this “battle” that the strengths and weaknesses of ideas are found out. In this process, there comes “learning”. And with learning comes discovery.

At its core, intellectual freedom mandates that academics should express their opinions openly and honestly, while inviting scrutiny and debate about those ideas. Unless opinions are expressed in this way, the growth and expression of ideas will be stifled and new realms of thinking will cease to be explored. That will lead to intellectual and social stagnation and a uniformity of thought which is an anathema to the concept of higher learning and social progress.

Intellectual freedom allows academics to challenge the status quo and encourage critical analysis. History tells of many people who did so.

During the last 160 years, arguably the two most prominent scientists/academics to challenge the status quo have been Charles Darwin and Albert Einstein. The ideas brought forth by both of these men were extremely controversial and offended several of their academic peers as well as many others in the greater society. That is how it should be and without intellectual freedom, the world would have been denied the benefit of ground-breaking thought and intellectual risk taking of the sort that encourages innovation and other scholastic enquiries.

There is great power in intellectual freedom. But with great power there must also come great responsibility. There must, at times, be some degree of restraint so that there is no descent into anarchy. That is a fine balance and one that has challenged legal thinkers both past and present. And that, in turn, is why there is often an uneasy tension between those responsible for the administration of an institution of higher learning and those responsible for promulgating the ideas that give the institution their raison d’etre.

Turning to specifics

Professor Peter Ridd was the head of physics at JCU from 2009 until 2016. He managed the University’s marine geophysical laboratory for 15 years. His qualifications are detailed in his affidavit and there has been no realistic challenge to those qualifications.

As far as the reporting structures at JCU went, Professor Ridd reported to his “line supervisor”, Professor Ronald White. Professor White reported to the Dean, Professor Marcus Lane. Professor Lane reported to the Head of the Division of Tropical Environments and Societies, Professor Gordon. Professor Gordon reported to the Senior Deputy Vice Chancellor, Professor Chris Cocklin. Professor Cocklin reported to the Vice Chancellor, Professor Sandra Harding.

As explained already, one of the associated entities with JCU is the CoE. That institution is headed by Professor Terry Hughes. Professor Hughes also reported to Professor Cocklin. Professionally, Professor Ridd had been concerned with the quality of the scientific research that had been published about the state of health of the Great Barrier Reef. He had published a number of papers on the need for better quality assurance. In his opinion, the health of the Great Barrier Reef had been frequently misrepresented.

Relevant Chronology

On 16 December 2015, Professor Ridd sent an email to Peter Michael, a journalist with News Limited.

In effect, this email suggested that the reports regarding degradation of the Great Barrier Reef by sediment were not reliable. Overall, the email was critical about the methodology used and the conclusions made. The email even suggested questions that Mr Michael might wish to pursue with the organisations responsible for those reports. Mr Michael, somewhat surprisingly, simply sent the whole email on to Professor Hughes and asked for his comments.

Professor Hughes wrote to Professor Cocklin making a complaint about the fact that Professor Ridd had written to Mr Michael. Professor Hughes characterised the email of Professor Ridd as one that was “spun” and claimed that it had attacked his integrity and that of the institutions generally.

he matter was investigated under the Code of Conduct and Professor Ridd was given a formal censure and a “direction” as to how he was to conduct himself in the future. Professor Ridd then wrote an essay which was published in a book called “Climate Change - The Facts 2017”. This essay questioned the conclusions about the degradation and damage to the Great Barrier Reef. As a result of this chapter, Professor Ridd was invited to appear on the television show “Jones and Co” which was broadcast on Sky News channel. The interview occurred on 1 August 2017 at 8:44 PM. Professor Ridd answered questions from the host, Alan Jones, and the co-host, Peta Credlin.

A condensed summary of the interview was brought to the attention of Professor Hughes. He contacted both Professor Cocklin and Professor Harding complaining that Professor Ridd was “trashing JCU’s relationship with ARC, GBRMPA and AIMS again”.

n 24 August 2017, Professor Ridd was contacted by the HR manager for JCU who alleged that there was a prima facie case of serious misconduct committed by Professor Ridd. The HR manager directed that Professor Ridd maintain confidentiality.

Professor Ridd engaged solicitors to respond to the allegation.

There is a great deal of correspondence that issued back-and-forth.

JCU also went through all of the emails that Professor Ridd had sent from his university email to see if there were any other breaches of the Code of Conduct.

On 23 October 2017, JCU wrote to Professor Ridd further alleging that he had denigrated colleagues and failed to maintain confidentiality in a number of emails that he had written to various people. On 20 November 2017, Professor Ridd launched these proceedings stemming out of the actions of JCU.

On 21 November 2017, JCU found that Professor Ridd had breached the Code of Conduct, had denigrated Professor Hughes, had denigrated the University and interfered with the disciplinary process and had breached confidentiality.

JCU gave Professor Ridd a final censure and again made a direction regarding confidentiality.

Notwithstanding the timing, there is no suggestion that JCU knew that Professor Ridd had launched these proceedings at the time the final censure was given.

On 22 November 2017, an article appeared in The Australian newspaper detailing the application that had been filed in this Court. Subsequent to this article, it became clear that Professor Ridd was not accepting of the final censure, nor the order to maintain confidentiality.

Professor Ridd started a “Go Fund Me” page to ask for donations for his legal expenses and wrote a “flyer” explaining what he saw as his predicament. He also published material from the disciplinary processes on a “WordPress” website. A number of media articles were also published where it was obvious that Professor Ridd had spoken to the journalist involved. 

On 13 April 2018, JCU wrote to Professor Ridd and determined that nine further allegations of breaching confidentiality directions, breaching directions and breaching the Code of Conduct had been substantiated. The letter indicated that termination was appropriate but that the final decision would be made by the Vice-Chancellor.

On 2 May 2018, the Vice-Chancellor terminated Professor Ridd’s employment.

All in all, there have been 17 allegations of misconduct made against Professor Ridd.

Professor Ridd has asked the Court to determine whether or not those findings, and the directions regarding confidentiality et cetera, were unlawful. JCU have submitted that all 17 findings, and the actions taken thereon, were justified.

Further

The University has claimed that this Court can find no comfort in authorities in the United States that deal with the concept of intellectual freedom. This is so because Australia has no underlying constitutional right to freedom of speech as expressed in the First Amendment to the United States Constitution.

The University submits that to describe “intellectual freedom” as a “fundamental right” has no basis in authority. 

The University submits that the way in which cl.14 of the EA must be interpreted is only by having reference to the words themselves; and that the exercise of intellectual freedom must be done in accordance with the Code of Conduct.

It seems to me that such an approach is far too narrow. One wonders why the clause finds itself in the EA at all if the approach the University is submitting is correct. There is very little that is said in cl.14 that does not have a corollary in the Code of Conduct. As was pointed out earlier, parts of the Code of Conduct read as though they are an attempt to rewrite the Intellectual Freedom clause.

The question then becomes “if the University is correct, why is there a clause in the EA devoted to intellectual freedom?” It would seem that the whole of cl.14 is redundant if it is the Code of Conduct that determines how any academic or intellectual freedom is to be exercised.

As discussed earlier in these reasons, the concept of intellectual freedom is not recent and is extremely important as it helps to define the mission of any university. Whilst it may not be a “fundamental right”, it is nonetheless the cornerstone upon which the University exists. If the cornerstone is removed, the building tumbles. The EA is made at the enterprise level and provides terms and conditions for the employees to whom it applies. The fact that there is a clause devoted to intellectual freedom in the EA is an illustration of how fundamental the concept is to employees of a university.

It must be remembered that an Enterprise Agreement is a formal agreement that must be ratified by the FWC and cannot be changed unless the FWC gives its imprimatur. Therefore, it is the document that is the basis from which other JCU documents gain their power.

The University submits that the right to exercise intellectual freedom provided by cl.14 is subject to the other terms of the EA, which must be read together with cl.14, as part of the context of the clause. This includes cl.13 (which talks of the Code of Conduct), cl.8 (which defines misconduct and serious misconduct) and cl.54 (which prescribes the steps to be taken by the University to address allegations of misconduct or serious misconduct).

To do requires one to limit the concept of intellectual freedom and make it subservient to clauses that relate to behaviour.

The wording of cl.14 does not show that there is any such limitation on its power or applicability.

Whilst cl.14.1 speaks of the commitment of JCU to act in accordance with the Code of Conduct, it does not, in that clause, bind anyone other than the university itself with the Code of Conduct. The clause puts its own limitations on intellectual freedom. The clause speaks of a “responsibility to respect the rights of others”. As referred to earlier in these reasons, there is no right to harass, vilify, bully or intimidate those who disagree with the views espoused.

The clause links the rights to intellectual freedom to the responsibilities of staff to support the University as a place of independent learning and thought where ideas may be put forward an opinion expressed freely. The clause speaks of what staff should do and what they must do.

When the clause already has sufficient limitations on the right to intellectual freedom, it seems incongruous to then impose other limitations that have not been expressly identified.

If the clause is truly meant to be subject to compliance with the Code of Conduct, such a limitation would have been spelt out in the clause itself.

 The conclusion by Vasta J is

The fundamental error made by the University is one that pervades their conduct throughout the whole of their interaction with Professor Ridd.

The University has assumed that the Code of Conduct takes precedence over cl.14. That is why there is no reference to cl.14 in any of the reasons given for the findings. It is easy to understand why this fundamental error has been made. If one truly believes that the Code of Conduct is the lens through which all behaviour must be viewed, then cl.14 is simply superfluous and can be ignored. But this is not the reality of the situation. It is actually cl.14 that is the lens through which the behaviour of Professor Ridd must be viewed.

To use the vernacular, the University has “played the man and not the ball”. Incredibly, the University has not understood the whole concept of intellectual freedom. 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.

Many aspects of the Code of Conduct cannot sit with the concept of intellectual freedom and certainly contravene cl.14. For example, the Code speaks of the need to “value academic freedom, and enquire, examine, criticise and challenge in the collegial and academic spirit of the search for knowledge, understanding and truth”. The University has denounced Professor Ridd because his enquiry, examination, criticism and challenge was not, in their view, done in the collegial and academic spirit. But there is no need for such enquiry, examination, criticism or challenge to be done that way under the rights conferred upon Professor Ridd by cl.14.

The University have been at pains to say that it is not what Professor Ridd has said, but rather the manner in which he has said it, that is the underlying reason for the censure, the final censure and the termination. But the University has consistently overlooked the whole of what has been written. They have concentrated on small, almost incidental parts of what has been said and then used the Code of Conduct to pass judgement on those small parts, with the intention that the flow on effect of that judgement would impugn the whole of what Professor Ridd has written.

The Code of Conduct is subordinate to cl.14 of the EA. And what is said by Professor Ridd must always be looked at in its whole context. The University have continually “cherry-picked” portions of the writings of Professor Ridd and said “that is not the exercise of intellectual freedom”. But it is the whole of what is written that must be looked at rather than excerpts taken out of context.

If the whole of what is said is objectively an exercise of intellectual freedom, then the protections of cl.14 apply. As was said earlier, in the search for truth, some people may be offended, even insulted. Sometimes, it is just not possible to be “collegial” in the search for truth. But if what is occurring is in furtherance of intellectual freedom, then cl.14 protects it.

It is only when behaviour is not covered by cl.14, that the Code of Conduct can apply. Clause 14 means that it is the right of Professor Ridd to say what he has said in any manner that he likes so long as he does not contravene the sanctions embedded in cl.14. That is at the heart of intellectual freedom.

That is why intellectual freedom is so important. It allows academics to express their opinions without fear of reprisals. It allows a Charles Darwin to break free of the constraints of creationism. It allows an Albert Einstein to break free of the constraints of Newtonian physics. It allows the human race to question conventional wisdom in the never-ending search for knowledge and truth. And that, at its core, is what higher learning is about. To suggest otherwise is to ignore why universities were created and why critically focussed academics remain central to all that university teaching claims to offer.

In light of the above, I make the following rulings:

The first finding made by the University was unlawful because it breached the rights that Professor Ridd had pursuant to cl.14. The censure given to Professor Ridd was unlawful as it contravened cl.14 of the EA.

The First Speech Direction was unlawful in that it sought to interfere with the rights that Professor Ridd had pursuant to cl.14.

The Second Finding made by the University was unlawful because it breached the rights that Professor Ridd had pursuant to cl.14.

The First Confidentiality Direction was unlawful because the University had no power to give that direction, and even if it did have the power, such a direction was in contravention of the rights that Professor Ridd had pursuant to cl.14.

The Third Finding made by the University was unlawful because it breached the rights that Professor Ridd had pursuant cl.14.

The Second Confidentiality Direction was unlawful because the University had no power to make such a direction, and even if it did have the power, such a direction was in contravention of the rights conferred on Professor Ridd by virtue of cl.14.

The Fourth Finding made by the University was unlawful because it breached the rights of Professor Ridd had pursuant to cl.14.

The Fifth Finding made by the University was unlawful because it breached the rights of Professor Ridd given to him by cl.14.

The Sixth Finding made by the University was unlawful because it breached the rights of Professor Ridd given to him by cl.14.

The Seven Finding made by the University was unlawful because it breached the rights that Professor Ridd had pursuant to cl.14.

The Eighth Finding made by the University was unlawful because it breached the rights that Professor Ridd had pursuant to cl.14.

The Third Confidentiality Direction was unlawful because the University had no power to make such a direction, and even if it did, such a direction contravened the rights of Professor Ridd pursuant to cl.14.

The Second Speech Direction was unlawful in that it sought to interfere with the rights Professor Ridd had pursuant to cl.14.

The Fourth Confidentiality Directions was unlawful because the University had no power to make such a direction, and even if it did, such a direction contravened the rights of Professor Ridd pursuant to cl.14.

The no satire direction was unlawful in that it sought to interfere with the rights Professor Ridd had pursuant to cl.14.

The Fifth Confidentiality Direction was unlawful because the University had no power to make such a direction, and even if it did, such a direction contravened the rights of Professor Ridd pursuant to cl.14.

The Second Censure was unlawful because it contravened cl.14 of the EA.

The Ninth Finding made by the University was unlawful because it related to the breach of a direction which was of itself unlawful.

The Tenth Finding made by the University was unlawful because it related to the breach of a direction which was of itself unlawful.

The Eleventh Finding made by the University was unlawful because it related to the breach of a direction which was of itself unlawful.

The Twelfth Finding made by the University was unlawful because it breached the rights that Professor Ridd had pursuant to cl.14.

The Thirteenth Finding made by the University was unlawful because it breached the rights the Professor Ridd had pursuant to cl.14.

The Fourteenth Finding made by the University was unlawful because it related to the breach of a direction which was of itself unlawful.

The Fifteenth Finding made by the University was unlawful because of breached the rights that Professor Ridd had pursuant to cl.14.

The Sixteenth Finding made by the University was unlawful because it breached the rights that Professor Ridd had pursuant to cl.14.

The Seventeenth Finding made by the University was unlawful because it had no substance whatsoever, and even if there were the slightest scintilla of evidence, it was contrary to the rights that Professor Ridd had pursuant to cl.14. The termination of Professor Ridd’s employment was unlawful because it punished Professor Ridd for conduct that was protected by cl.14 of the EA.