High Court decision emphasises value of intellectual freedom
On 13 October 2021, the High Court of Australia delivered its judgment of Ridd v James Cook University  HCA 32 (the High Court’s Decision) where it unanimously dismissed the appeal of Dr Peter Ridd, upholding the decision of the Federal Court of Australia (the Full Court’s Decision). A summary of the Full Court’s Decision can be accessed here.
The High Court’s Decision affirms that while the scope of intellectual freedom is broad, it should not be treated as though it is a general freedom of speech as it may be restricted by confidentiality provisions within disciplinary action.
Dr Ridd’s employment with James Cook University (JCU) was terminated on grounds of serious misconduct under JCU’s enterprise agreement. Dr Ridd was a known climate change denier who, throughout the final years of his employment, publicly questioned and criticised a number of research institutions, including facilities and colleagues engaged with JCU. Dr Ridd submitted damaging publications to journalists and appeared on Sky News publicising his opinions, claiming that his criticisms were protected by his right to exercise intellectual freedom.
JCU asserted that Dr Ridd had breached it's Code of Conduct by failing to treat others with “respect and courtesy” and issued a number of censures and confidentiality directions to impose restrictions on Dr Ridd. However, Dr Ridd continued to voice his opinions and publicly questioned the dispute resolution process implemented by JCU. As a result, JCU dismissed Dr Ridd making 18 findings of serious misconduct, including deliberately and repeatedly breaching confidentiality directions throughout the disciplinary process.
Across the course of lengthy proceedings, Dr Ridd argued that all of his actions were exercises of intellectual freedom provided by clause 14 of JCU’s enterprise agreement, and therefore could not be considered a breach of the Code of Conduct. JCU argued that its Code of Conduct was incorporated into the enterprise agreement and as such it was possible for clause 14 of the enterprise agreement to be constrained by the requirement to treat others with “respect and courtesy” and hence termination was valid based on Dr Ridd’s contraventions of the enterprise agreement.
The Full Court Decision held that clause 14 of the enterprise agreement did not provide an unrestricted right for Dr Ridd to express his opinions in whatever manner he chose and that, in expressing his views, he was still subject to the behavioural standards imposed by the Code of Conduct. Dr Ridd was found to have breached the enterprise agreement.
High Court’s Decision
Dr Ridd subsequently sought leave to appeal the Full Court’s Decision to the High Court of Australia. The key issue before the High Court was whether, in the interpretation of clause 14 of JCU’s enterprise agreement, intellectual freedom should be qualified by a requirement to afford “respect and courtesy” to others, and by obligations of confidentiality in relation to JCU’s disciplinary process.
The High Court held that the only restrictions upon the intellectual freedom clause were those contained in the clause itself and it was not qualified by every individual obligation provided in JCU’s Code of Conduct. Further, the ordinary meaning of clause 14 reflected JCU’s commitment to act in a manner which was consistent with both promoting intellectual freedom and the overall objectives of the Code of Conduct.
The High Court gave weight to the importance of intellectual freedom and its prevalence throughout history and society. The High Court stated:
“Whilst different views may be reasonably taken about some additional restrictions upon intellectual freedom, the instrumental and ethical foundations for the developed concept of intellectual freedom are powerful reasons why it has rarely been restricted by any asserted “right” of others to respect of courtesy.”
While the High Court ultimately agreed with Dr Ridd’s submissions that his actions were not constrained under the protections of intellectual freedom, the concept of intellectual freedom remained subject to important limits. Contrary to Dr Ridd’s submissions, the High Court held that clause 14 could not provide protection against breaches of the Code of Conduct which involved a failure to respect the confidentiality of the parties to a disciplinary and complaint handling processes.
The High Court held that the best interpretation of clause 14, having regard to its context and purpose, was that the intellectual freedom could not be qualified by a requirement to afford respect and courtesy in the manner of its exercise. However, that conclusion ultimately did not affect the outcome of the appeal. The High Court held that the only conduct which was protected by intellectual freedom was the academic criticisms and not the misconduct related to the breaches of confidentiality.
The High Court found that the termination was lawful and unanimously dismissed the appeal.
Take Home Messages
The High Court’s Decision has reinforced that intellectual freedom is a protected right and at its core serves a function in society to allow lawful differences in opinions to be voiced in a public arena. Accordingly, the scope of intellectual freedom is that it cannot be considered as misconduct.
However, whilst this freedom exists in a generally unrestricted format, the High Court’s Decision reiterates that intellectual freedom cannot be treated as though it is a freedom of speech generally and it attracts the ability to be constrained by industrial instruments, such as an enterprise agreement.
Furthermore, the notion of confidentiality throughout dispute resolution preserves the interests of a fair and lawful investigation process. As such, conduct that disrupts a dispute resolution process may be considered a valid reason for termination.
For more information in relation to this article please contact Sathish Dasan on +61 8 8210 1253 or firstname.lastname@example.org, Ganesh Krishnan on +61 8217 1395 or email@example.com or Anastasia Gravas on +61 8 8217 1331 or firstname.lastname@example.org.