Ridd v James Cook University

KIEFEL CJ, GAGELER, KEANE, GORDON AND EDELMAN JJ.

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   to discharge its responsibilities under an Act or University policy;

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   for a proceeding in a court or tribunal; or unless the person to whom the confidential information relates, consents in writing to the disclosure of the information or record; or if no consent is obtainable and such disclosure is unlikely to harm the interests of the person affected; or unless the information is already in the public domain." 38 As both the majority and minority of the Full Court observed, there are numerous difficulties with the drafting of cl 54.1.5. But only one aspect of the interpretation of cl 54.1.5 relevantly arises. Contrary to the approach of the primary judge, but consistently with the majority of the Full Court, the concern of cl 54.1.5 is not merely with the interests of the person subject to the disciplinary proceeding, here Dr Ridd. For instance, in para (c), the person to whom the confidential information relates might be a complainant. The University also has an interest in the maintenance of the confidentiality of its private procedures. Of course, as para (b) provides, the information would not be confidential for the purposes of a proceeding in a court or tribunal, which would include proceedings such as these under s 50 of the Fair Work Act. Nor, as para (d) provides, would the information remain confidential once it had been read or expressed in open court. At no point has Dr Ridd suggested that cl 54.1.5 did not apply to him because there had been a reasonable opportunity for JCU processes to be followed. 39 Subject to these limitations, the confidentiality provisions serve the legitimate interests of all parties to JCU's dispute resolution processes, and of JCU itself in maintaining the integrity and efficacy of those processes. Those processes are not inconsistent with cll 13 and 14 of the Enterprise Agreement. Observance of the confidentiality provisions ensures that a member of staff with a just grievance against another member of staff is not intimidated or reduced to silent resignation by the willingness of a colleague to ignore or disrupt the dispute resolution processes of JCU. Conduct of that kind on the part of a staff member may, in some circumstances, be regarded as inconsistent with the maintenance of the relationship of employment under the Enterprise Agreement. 40 In summary, contrary to Dr Ridd's submission, cl 14 cannot provide any protection against breaches of the Code of Conduct which involve disagreement with JCU decisions or JCU 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 cl 54.1.5. The decisions of JCU disciplining Dr Ridd 41 Although the primary judge and the Full Court properly focused upon each of the actions of JCU that Dr Ridd alleged to have contravened the Enterprise Agreement, the focus of submissions on this appeal was at the higher level of principle concerning the matters of interpretation addressed above. When descending to the facts, Dr Ridd focused only upon the three decisions by which Dr Ridd was disciplined, namely, (i) the 2016 Censure, (ii) the Final Censure, and (iii) the termination decision. The 2016 Censure 42 The first censure of Dr Ridd arose from an email that Dr Ridd sent to a journalist on 16 December 2015. Dr Ridd sent the email in his capacity as a Professor and head of physics at JCU and as a member of the Marine Geophysics Laboratory. Dr Ridd said to the journalist that work "we have done recently" indicates that the Great Barrier Reef Marine Park Authority ("the GBRMPA") "is grossly misusing some scientific 'data' to make the case that the Great [B]arrier Reef is greatly damaged". He attached documents showing photos of the Great Barrier Reef from around 1890 and from around 1994 which he said were "very famous" and "plastered across the internet". He then provided several pages of comment about those photographs of the Great Barrier Reef, saying that they are "actually a dramatic example of how scientific organisations are quite happy to spin a story for their own purposes, in this case to demonstrate that there is massive damage to the [Great Barrier Reef]". 43 Towards the conclusion of his lengthy email, Dr Ridd said that "GBRMPA, and the [Australian Research Council Centre of Excellence for Coral Reef Studies ('the ARC Centre of Excellence')] should check their facts before they spin their story" and that "[m]y 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". These phrases were the basis for the first finding of misconduct against Dr Ridd and the 2016 Censure. 44 On 29 April 2016, following a complaint by the head of the ARC Centre of Excellence and an investigation, JCU concluded that Dr Ridd had engaged in misconduct as defined in the Enterprise Agreement. JCU found that Dr Ridd had breached Principles 1 and 2 of the Code of Conduct respectively by: (i) not acting collegially, not respecting the rights of others, not upholding professional standards, and "not displaying responsibility in respecting the reputations of other colleagues"; and (ii) not "uphold[ing] the integrity and good reputation of the University". Dr Ridd was formally censured and directed that in making future public comments in his academic field he must do so "in a collegial manner that upholds the University and individuals['] respect". 45 Nowhere in JCU's findings, and at no stage in these proceedings, did JCU deny that Dr Ridd's remarks about the GBRMPA and the ARC Centre of Excellence in his 16 December 2015 email were views that Dr Ridd honestly held. The primary judge held, in a finding that was not challenged on appeal, that Dr Ridd's honest expression of these views was an expression of opinion "about issues and ideas related to his field of competence". JCU did not submit that Dr Ridd's remarks were unlawful or contrary to the legal rights, including rights to reputation, of any person. 46 The majority of the Full Court correctly reasoned that the opinions expressed by Dr Ridd in his 16 December 2015 email fell, prima facie, within the scope of cl 14.3 of the Enterprise Agreement. The majority reasoned that Dr Ridd would therefore have had a defence to any charges of misconduct or serious misconduct for the expression of his opinions. But the majority held that Dr Ridd had not been disciplined for the expression of his opinions but instead was disciplined having regard to the "correlative duty ... owed to his colleagues" under the Code of Conduct. For the reasons explained above, the best interpretation of cl 14.3 of the Enterprise Agreement is that where the expression of opinion falls within the intellectual freedom protected by cl 14 then it cannot amount to misconduct or serious misconduct for violating the Code of Conduct. 47 JCU's submission that Dr Ridd could violate the Code of Conduct by the tone or manner of his expression of honestly held views based on his academic expertise irrespective of whether those views were expressed lawfully and consistently with the legal rights of others is not consistent with the proper interpretation of cll 13 and 14 of the Enterprise Agreement. Dr Ridd should not have been given the 2016 Censure. The Final Censure 48 The "Final Censure" of Dr Ridd by JCU was the result of a number of comments by Dr Ridd in different fora. The first of these was made on 1 August 2017 in an interview with Mr Alan Jones and Ms Peta Credlin on the television show "Jones and Co", which was broadcast on Sky News ("the Sky Interview"). In the course of that interview, Dr Ridd affirmed remarks that he had made in a book chapter which argued that the Great Barrier Reef "[q]uietly grows and waits for the beginning of the next cycle of death and regrowth". Dr Ridd added that after the reef "crashes", the "scientists ... then do the same stories and push it all around the world again". He said that "this has been going on for close to 50 years, how many more years will it take for us to cotton‑on to the fact that you can no longer trust this stuff, unfortunately". Earlier in the Sky Interview he had said that: "the basic problem is that we can no longer trust the scientific organisations like the Australian Institute of Marine Science even things like the ARC Centre of Excellence for Coral Reef Studies. A lot of this stuff is coming out, the science is coming not properly checked, tested or replicated and this is a great shame because we really need to be able to trust our scientific institutions. And the fact is, I do not think we can anymore. ... I think that most of the scientists who are pushing out this stuff, they genuinely believe that there are problems with the reef. I just don't think that they are very objective about the science they do. I think [they're] emotionally attached to their subject, and ... You know you can't blame them, the reef is a beautiful thing." 49 On 21 November 2017, following a prima facie finding by JCU of serious misconduct in this interview and the exchange of considerable correspondence between Dr Ridd and JCU, the Senior Deputy Vice‑Chancellor of JCU wrote to Dr Ridd setting out JCU's finding that Dr Ridd had engaged in serious misconduct by violation of the Code of Conduct in relation to this interview and other matters. Dr Ridd was disciplined with the Final Censure. 50 One basis for the Final Censure, which relied upon the extracts above from the Sky Interview, was that Dr Ridd's intellectual freedom did not justify the "criticism of key stakeholders of the University" in a manner which was not "in the collegial and academic spirit of the search for knowledge, understanding and truth" or "respectful and courteous". Dr Ridd was also told that his conduct "had and has the capacity to damage the reputation of [the Australian Institute of Marine Science] and ARC Centre [of Excellence] and therefore the relationship of the University with these bodies and by association the reputation of the University". In the 21 November 2017 letter, the Senior Deputy Vice‑Chancellor also directed Dr Ridd not to discuss or to disclose any matters relating to the disciplinary process to any person including the media or in any public forum but excluding his immediate family or solicitors. Dr Ridd was also told that it was JCU's "expectation[]" that he "will not make any comments or engage in any conduct that directly or indirectly trivialises, satirises or parodies the University taking disciplinary action against [him]". 51 For the same reasons expressed above in relation to the 2016 Censure, that part of the reasoning of the Senior Deputy Vice‑Chancellor in the 21 November 2017 letter concerning the manner in which Dr Ridd had expressed his criticisms was inconsistent with the proper interpretation of cl 14.3 of the Enterprise Agreement. In the absence of any assertion that his remarks amounted to harassment, vilification, bullying, or intimidation, or that they were defamatory or not honestly held, the remarks were protected by the intellectual freedom in cl 14. 52 The Final Censure did not, however, rely exclusively upon the remarks made by Dr Ridd in the Sky Interview. Rather, it also relied upon six other findings, described in the courts below as the third to eighth findings, which together with the remarks made by Dr Ridd in the Sky Interview were found to be serious misconduct for the purposes of cl 54.3.6 of the Enterprise Agreement. Five of these six findings concerned remarks in emails sent by Dr Ridd from his JCU email account to external recipients expressing his views that he had offended "powerful organisations" and "some sensitive but powerful and ruthless egos", and that "our whole university system pretends to value free debate, but in fact it crushes it". These were not expressions of opinion within an area of Dr Ridd's academic competence. And Dr Ridd made no submissions that could have justified these remarks otherwise falling within the intellectual freedom protected by cl 14. 53 The remaining finding of the six additional findings upon which the Final Censure rested was, however, the subject of submissions by Dr Ridd. That was the finding that he had repeatedly failed to comply with his obligations with respect to confidentiality. The failure to comply with confidentiality obligations arose despite letters from JCU to Dr Ridd on 24 and 27 August 2017 in which JCU notified Dr Ridd that it considered the Sky Interview to be a prima facie case of serious misconduct and repeatedly emphasised the confidentiality of the disciplinary process for all parties. Dr Ridd's attention was also directed by the 24 August 2017 letter to cl 54.1.5 of the Enterprise Agreement. 54 On 28 August 2017, Dr Ridd replied to a group email, which had more than 30 group members, in which a member of the group had attached an article from The Australian newspaper that mentioned that Dr Ridd was facing disciplinary proceedings and the member had asked "Is there anything we can do to help Peter?". Dr Ridd responded, with comments that included, "Actually if anything a letter to my VC would be the most useful". 55 One of the curiosities of the manner in which Dr Ridd's case was conducted was that he accepted that, subject to the intellectual freedom in cl 14, this comment involved serious misconduct, which must have been on the basis that the comment contravened Dr Ridd's obligations of confidentiality under the Code of Conduct. He made no submission that the exception in cl 54.1.5 was engaged because the information was "already in the public domain". Nor did he make any submission that his response suggesting that letters be sent to the Vice‑Chancellor did not impair the confidentiality of any of the parties involved in the management of the disciplinary process or reveal any confidential information gathered or recorded. His sole submission – accepted by the primary judge, but rejected by the majority of the Full Court – was that confidentiality could not be infringed, and directions concerning confidentiality could not be given by JCU, if the confidential matters, or the directions, fell within the scope of the intellectual freedom. That submission should not be accepted for the reasons expressed in the section of these reasons concerned with the interpretation of cl 54.1.5. 56 The consequence of this reasoning is that, given the manner in which Dr Ridd's case has been presented, one part only, not all, of the basis for the Final Censure was unjustified. Consistently with the all‑or‑nothing presentation of his case, it was not submitted by Dr Ridd that an irrelevant consideration as to only one part of the Final Censure would have the effect that the whole of the Final Censure was a contravention of the Enterprise Agreement. The termination decision 57 At about the same time as, or subsequent to, the Final Censure, Dr Ridd engaged in further conduct which was the basis for findings made by the Deputy Vice‑Chancellor of JCU. It was alleged that in 20 respects Dr Ridd had engaged in serious misconduct. Those 20 respects were divided into nine head allegations, many of which contained sub‑allegations, including: deliberate disclosure by Dr Ridd of confidential information to The Australian newspaper in around November 2017, being correspondence contained in his affidavit filed in the proceeding in the Federal Circuit Court; publishing confidential documents relating to the 2016 and 2017 disciplinary processes, which had led to the 2016 Censure and the Final Censure; "deliberately and repeatedly" breaching confidentiality directions given to him by JCU, including disclosing information to journalists; damaging JCU's reputation by making comments without proper basis and in deliberate disregard of his obligations to JCU; communicating to a student in a manner that directly or indirectly trivialised, satirised, or parodied JCU's disciplinary action against him; publishing comments about the disciplinary process that were said to be untrue, misleading, or not full or frank; communicating with another staff member in a manner that was threatening, insubordinate, or disrespectful; and preferring his own interests and those of the Institute of Public Affairs above the interests of JCU in breach of his obligations to avoid conflicts of interest. 58 Apart from Dr Ridd's submission about his confidentiality obligations being subject to the cl 14 intellectual freedom, which should not be accepted for the reasons already given, none of these findings of serious misconduct was challenged. It appears to have been assumed throughout these proceedings that all of the information subject to these breach of confidentiality allegations (i) concerned the parties involved or concerned information that had been gathered and recorded as part of the disciplinary process and (ii) was not already in the public domain, including not in any open court hearings in the proceedings commenced in the Federal Circuit Court on 20 November 2017. 59 On 13 April 2018, the Deputy Vice-Chancellor of JCU made a preliminary determination under cl 54.3.6 of the Enterprise Agreement that Dr Ridd had engaged in serious misconduct as alleged in relation to 18 of the 20 respects. Only two sub‑allegations were found to be unsubstantiated. That is, the Deputy Vice‑Chancellor made 18 findings of serious misconduct against Dr Ridd. The Deputy Vice‑Chancellor's conclusion was that the appropriate disciplinary penalty was termination of Dr Ridd's employment. The Deputy Vice‑Chancellor concluded that Dr Ridd's "behaviour in regards to each allegation, individually and collectively, is serious and destructive of the necessary trust and confidence for the continuation of the employment relationship" and that "[i]ndividually, and collectively, the allegations demonstrate a pattern of deliberate Serious Misconduct". None of these findings was in respect of expressions of opinions or ideas within Dr Ridd's academic expertise. And Dr Ridd did not suggest that any of these findings were in respect of criticism of JCU's decisions or its processes "through applicable processes". 60 Following the preliminary decision of the Deputy Vice‑Chancellor, Dr Ridd, through his solicitors, made a final submission to the Vice‑Chancellor under cl 54.4 of the Enterprise Agreement. On 2 May 2018, the Vice‑Chancellor made a final determination under cl 54.5 of the Enterprise Agreement. The Vice‑Chancellor was satisfied that it was open to the Deputy Vice‑Chancellor to make her 18 findings of serious misconduct and that it was within the power of the Deputy Vice‑Chancellor to do so. The Vice‑Chancellor determined that Dr Ridd's employment should be terminated. Much of the Vice‑Chancellor's reasoning was concerned with the 18 findings of serious misconduct by the Deputy Vice‑Chancellor, individually and collectively, as being destructive of the necessary trust and confidence for the continuation of the employment relationship. 61 Unlike the decision of the Deputy Vice‑Chancellor, the Vice‑Chancellor also considered the 2016 Censure and the Final Censure. She did so in the course of reasoning to the conclusion that "alternative sanctions would not be appropriate". However, the reliance by the Vice‑Chancellor upon the 2016 Censure and the Final Censure focused upon the extent to which those censures concerned conduct the same as or similar to that which the Deputy Vice‑Chancellor had found to be serious misconduct. The Vice‑Chancellor said that Dr Ridd had been "twice censured for similar conduct" to the instances of serious misconduct found by the Deputy Vice‑Chancellor and that Dr Ridd had repeated "the same conduct for which [he had] previously been censured". And for the reasons already given, the actions of Dr Ridd which were the subject of the 18 findings of serious misconduct by the Deputy Vice‑Chancellor were not protected by cl 14. 62 Other than to submit generally that the findings by the Deputy Vice‑Chancellor were contrary to Dr Ridd's intellectual freedom protected by cl 14, Dr Ridd did not dispute that the Vice‑Chancellor's termination decision could be supported by the 18 findings made by the Deputy Vice‑Chancellor. Indeed, the contest between the parties concerned only the validity of the conclusions of the Deputy Vice‑Chancellor. Conclusion 63 This appeal was conducted by both parties on an all‑or‑nothing basis. JCU's position was that all of the findings against Dr Ridd were justified. Dr Ridd's position was that none of the findings made against him was justified. Dr Ridd sought to reinstate all of the orders made by the Federal Circuit Court with adjustments for compensation and pecuniary penalties to reflect errors identified by the Full Court which he conceded had been made. No submissions were made by Dr Ridd to justify an alternative ground of relief that the matter be remitted to the Federal Circuit Court. 64 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". The 2016 Censure given to Dr Ridd was, therefore, not justified. 65 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.