Peter Vincent Ridd and James Cook University

[2021] HCATrans 15

[2021] HCATrans 015

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B47 of 2020

B e t w e e n -

PETER VINCENT RIDD

Applicant

and

JAMES COOK UNIVERSITY

Respondent

Application for special leave to appeal

GAGELER J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 FEBRUARY 2021, AT 11.17 AM

Copyright in the High Court of Australia

MR. S.J. WOOD, QC:   If it pleases the Court, I appear with my learned friends, MR B.W. JELLIS and MS C. MINTZ for the applicant.  (instructed by Mahoneys)

MR B.W. WALKER. SC:   May it please the Court, I appear with my learned friends, MR Y. SHARIFF, SC and MS V. BULUT, for the respondent.  (instructed by Clayton Utz)

MR WOOD:   Thank you, your Honour.  At the core of this case is a simple error of construction by two members of the Full Court.  That error of construction concerns the right of an academic to speak out publicly and critically.  The cases, the respondent accepts in their written submissions, turns on the proper construction of clause 14 of the enterprise agreement because clause 14 protected the right to academic freedom and it is found ‑ ‑ ‑

GAGELER J:   Intellectual freedom.

MR WOOD:   Intellectual freedom, your Honour, which is, of course, a broader concept than academic freedom but does include within it, when an academic exercises the right to intellectual freedom, the concept of academic freedom.  Just because it is called “intellectual freedom” as extended to the staff does not deprive it of its core meaning when applied to the academics.  Yet, Dr Ridd was punished for conduct that was an exercise of that right.  He was punished because the University took the position that what he said was a contravention of the code of conduct.  The University’s contention was that any right conferred by clause 14 remained also subject to the obligations and prohibitions imposed by the University’s code of conduct.  The impact of the University’s construction meant that, as in this case, it could take disciplinary action against an employee for any conduct that was within the four corners of clause 14.

GAGELER J:   You accepted that the conduct was in breach of the code of conduct.

MR WOOD:   Yes, your Honour.

GORDON J:   And it was serious misconduct.

MR WOOD:   If – in the absence of clause 14, yes.  Clause 14 provides a protection from the operation of the code and, therefore, it cannot be misconduct, but absent clause 14 it would have been misconduct, yes.

EDELMAN J:   What is it about the code of conduct that is inconsistent with clause 14?

MR WOOD:   Clause 14 sets up a freedom of action and activity detailed in clause 14, that is, for academics to go about their work which involves the robust exchange of ideas and to be prevented or protected from the University.

EDELMAN J:   What is it about the code of conduct, what provision of the code of conduct is inconsistent with that?

MR WOOD:   Many of the provisions but certainly the provisions that were used in this case.  For example, one of the provisions that was used in the code of conduct was that an academic must be respectful and courteous to other members of staff.  Now, that obligation cuts across the obligation in clause 14.

GORDON J:   Does it cut across?  Are they to be read together and construed together?  You have contravention, as I see it, of – or any serious breach of the code of conduct as being part of the definition of “serious misconduct”, you have references throughout the enterprise agreement to the role played and the significance of the code of conduct.  Is that the right way to look at it? 

MR WOOD:   Yes, it is. 

GORDON J:   Your argument, as I understand it, is that clause 14 gazumps or, in effect, replaces – I do not what - puts lines through parts of the code of conduct. 

MR WOOD:   It is a right, a freedom of action that is given to employees who, when acting within the scope of that right, cannot be disciplined, including by the code of conduct.  So once you have determined that an academic is speaking within their respective field of competence and they are not harassing, vilifying, bullying or intimidating others, then the code of conduct – there is no room for the code of conduct to imply its lower standards of behaviour.

EDELMAN J:  So your submission is effectively that the intellectual freedom is an intellectual freedom to speak disrespectfully and discourteously? 

MR WOOD:   Of course, your Honour.  That is what the right is.  The right is to speak hard truths. 

EDELMAN J:  One can speak hard truths respectively and courteously, cannot one? 

MR WOOD:   One example of this makes our point.  At the core of this case was that Dr Ridd was punished for saying that you could no longer trust the partner scientific organisations of the University, that the scientists who were putting out this stuff genuinely believed there were problems - I just do not think they are very objective and I think they are emotionally attached to their subject.

EDELMAN J:  What is disrespectful or discourteous about that? 

MR WOOD:   Well, it is extremely disrespectful to say to another scientist that you are not objective about your work, that you are too emotionally attached to your subject matter, extraordinarily disrespectful.  Also another aspect of the code of conduct is that the code of conduct, as applied in this example, allowed the University to say that that behaviour damaged the reputation of the University, as it no doubt did. 

GAGELER J:   Mr Wood, getting to the question of the construction of clause 14, your real difficulty is with the concluding words of clause 14.1, is it not? 

MR WOOD:   That is right, your Honour.  That is true.

GAGELER J:   How do you deal with those? 

MR WOOD:   First of all, we say look at clause 14 and clause 13 together, that clause 14 and the rights within clause 14 – those specific detailed rights - were explained by the drafters of the agreement to be not interfered with by clause – by the code of conduct, by clause 13.3.  Clause 13.3 as a primary position resolves the issue before the case.  It was not intended to detract, to undermine, to take away from those rights. 

Then one goes to the purpose of the clause, completely glossed over by the Full Court.  The purpose of this clause is to give effect to time‑honoured conceptions of academic freedom, to allow academics to robustly exchange ideas without being censured.  That purpose was ignored.

GAGELER J:   Well, it is a bit wider than that purpose, is it not, because, as we were previously discussing, the reference is to intellectual freedom and we are concerned with staff who are not academics.

MR WOOD:   Yes.  It is even broader than that, but at least it…..that as a core meaning relevantly to this case, the freedom of academics to have a robust exchange of views and opinions.

EDELMAN J:   But that is also contained in the code of conduct as a requirement to behave with intellectual honesty.

MR WOOD:   Yes, your Honour, but there are other aspects of the code of conduct that mean that the limitations, drawn at a broad level in clause 14 – that is, in clause 14.3, which says you can speak hard truths so long as you do not harass, vilify, bully or intimidate - can be interfered with in the very way they happened in this case because once you say something in a non‑harassing way that damages the reputation of the University or is disrespectful or discourteous or, to use another phrase from the code of conduct, that is uncollegial, then those protections in clause 14 might as well not be there.

EDELMAN J:   That is the assumption that this litigation is being conducted upon.

MR WOOD:   That is correct, your Honour, because there is, in this case, having regard to the example I showed you, in effect a clash between the lower standards of the code of conduct and the higher limits placed in clause 14.

GORDON J:   You mean in favour of intellectual freedom?

MR WOOD:   In favour of intellectual freedom in clause 14, against intellectual freedom in the code of conduct because the code of conduct was not designed to deal with the specific issue of intellectual freedom within a university.  It is a broad‑ranging document that is designed to deal with issues like the way in which someone behaves at work, the integrity with which they go about their business, the way they treat other people.  It was not designed ‑ ‑ ‑

GORDON J:   Mr Wood, the concession that you made about the way in which you conducted your case below, does that not cause you problems?

MR WOOD:   No, your Honour.

GORDON J:   In a sense, was it not open to you to challenge it on those facts and to say, “I have this construction question, but it does not arise to serious misconduct for the purposes of the code”?

MR WOOD:   The point of the litigation below was that this managerial tool of the code of conduct used by the University should not be used to suppress the rights that are in clause 14.  Clause 14 contains rights that were exercised by Dr Ridd, found by the primary judge in every occasion that he was said to have been breaching the code of conduct, and the code of conduct cannot be used in that way.  It is not a tool that can come in as a side wind and destroy the balance that has been set up by clause 14.

GORDON J:   But 14, as Justice Gageler put to you, said it has to be looked at - that the protections are in accordance with the code of conduct.  The two of them have to sit together.

MR WOOD:   They do sit together in this way, your Honour, that is, you have a university, you have a time‑honoured conception of intellectual or academic freedom.  The people who have made this agreement have decided, unlike any other enterprise agreement you will find, to put in a specific protection for intellectual freedom.  You will not find that in any other enterprise agreement.  It is unique ‑ ‑ ‑ 

GORDON J:   I thought they varied from university to university.

MR WOOD:   Sorry, outside the university sector.  That was put in with limits that are designed to achieve the purpose sitting behind academic freedom.

GAGELER J:   So as I understand it, you say clause 14.1 creates a freestanding right of intellectual freedom, which is qualified by clause 14.3.

MR WOOD:   Yes, your Honour.

GAGELER J:   But only 14.3, and an exercise of that right of intellectual freedom, even if in breach of the code of conduct, is immune from its reach.

MR WOOD:   That is right, your Honour, and you cannot be punished for a breach of the code of conduct if one is exercising the rights within the limits set out in that clause.

GAGELER J:   It really comes down to the weight to be given in the context to the concluding words of 13.3 and 14.1, which are not easy to read together, on any view.

MR WOOD:   Except that it would be a very unusual circumstance to use the concluding words in 14.1 to bring in by a side wind the whole of the lower standards of the code of conduct in circumstances where the parties have identified in the preceding clause that the code of conduct is not to touch the rights set out in clause ‑ ‑ ‑ 

EDELMAN J:   The alternative way of reading it is to read the code of conduct as itself confined in a way which must be consistent with academic- sorry, intellectual freedom, so that there is not going to be a breach of the code of conduct, provided that, for example, the value of academic freedom, inquiry, examining, criticising, and challenging in the collegial and academic spirit of search for knowledge is satisfied.

MR WOOD:   The outcome is the same, your Honour.  Once you have the facts that engage clause 14, then that is the end of the matter.

EDELMAN J:   The outcome may be the same, but if it is construed in the way that I suggested, there is no breach of the code of conduct.  One does not need to look to inconsistencies between a code of conduct and intellectual freedom, because the code of conduct itself has not been breached.

MR WOOD:   But it does not matter about the code of conduct, your Honour.  The code of conduct might have been breached, it might not have been breached.  This is an instrument that, as a statutory artefact, it prevails over other instruments.  It has to be – the code of conduct is referred to in the enterprise agreement.  Provisions for the way it can be changed are set out in the enterprise agreement and the relationship between the two instruments is described in the enterprise agreement by clause 13.3.

Now, once that is understood, it does not matter whether it is a breach of the code of conduct or not.  It can be, it might be, it might not be.  But it does not interfere – it does not get the opportunity to play a role in the protected space that is carved out by clause 14.  It just does not operate. 

GAGELER J:   Mr Wood, can you remind me how the Full Court dealt with clause 13.3?

MR WOOD:   It was an extraordinary construction.  It is at paragraph 78, your Honour, of the majority’s decision.  What they said, in effect, was to give the word “detract” no real bite.  They say here:

Clause 13.3 is no more than a statement of intent by JCU not to diminish its commitment to promote and protect intellectual freedom by means of the Code of Conduct.  The Code of Conduct does not do so.  If the Code of Conduct were to proscribe any of the matters listed in cl 14.2 . . . those provisions of the Code of Conduct would indeed detract from cl 14. 

That is an extraordinarily narrow approach to be taking to the concept of detraction because in this case, in every example, the code of conduct did detract from those rights.  The primary judge did find – and it was conceded by the respondent – that at no stage had the applicant transgressed the limits in clause 14.  At no time had he harassed, bullied, vilified or intimidated. 

Once that conclusion was made – that these were things – these were expressions of opinion about issues and ideas related to Dr Ridd’s fields of competence and he did not transgress the limits provided by this clause, that

is the end of the inquiry.  He cannot be punished for it.  No academic can be ‑ ‑ ‑

EDELMAN J:   That cannot be right, can it?  An academic who dishonestly – and I am not saying it is this case – but an academic who dishonestly publishes information which could potentially cause harm to members of the public, that may not strictly be within your formulation but that would be both a breach of the code of conduct and not within true notions of intellectual ‑ ‑ ‑

MR WOOD:   Yes, it would, your Honour, because the opinion would have to be construed as honest opinion.  That is not our case. 

EDELMAN J:   And not reckless opinion.

MR WOOD:   Perhaps not reckless.  But Dr Ridd said, in relation to everything he did, it was within my field of competence and it was my honestly held belief.  The University – just getting back to that example we were discussing – said, in censuring Dr Ridd, that it did not matter whether or not – and I can take the Court to this – these statements that you can no longer trust the scientific partners of the University, and it is not objective and the scientists are emotionally attached – it did not matter if Dr Ridd genuinely held those views and it did not matter whether he said them in a calm manner.  It was still a breach of the code of conduct because it was not respectful and courteous, and it damaged the reputation of the University.

Now, it would be an extraordinary – getting back to your question, Justice Gageler – if through the side wind of some infelicitous drafting in clause 14.1 the whole regime could be set aside and the code of conduct could be used as a tool, as it has been in this case.  The Court should be very troubled by the facts of this case.  At the very time this protection was called on in aid, the commitment of the University to protect academic freedom was resiled from and Dr Ridd was punished for doing the very thing an academic should be doing.

GAGELER J:   Whatever trouble might arise from the facts, we are confined in our inquiry by the way in which the case has been conducted to date.

MR WOOD:   Of course, your Honour, we understand that.

GAGELER J:   Thank you.  Mr Walker.

MR WALKER:   Your Honours, plainly the claim for special leave depends, on any view, on the significance, for the purposes of this Court undertaking the case, of interpreting subclause 13.3 and 14.1, obviously not in isolation, but they are the pointy end.

GORDON J:   And 14.3 probably.

MR WALKER:   Subclause 14.2 and 14.3 are very important, but it is 13.3 and 14.1 which are at the heart of the matter.  It is not to be forgotten, as the majority in the Full Court did not forget, that the combined effect of those provisions is to bespeak the significance of the code of conduct.  That is not an accidental or mundane title for a document – a code of conduct.  Neither was it, as it were, a decorative extra to be referred to in an ambivalent fashion by the provisions in question. 

As the Full Court sets out, starting application book 153 going over the page to 154, the code of conduct came into existence in order to comply with a requirement of State legislation, that is, the Public Sector Ethics Act.  It is therefore from the very beginning contextually a document of a character which one would not expect to find, ethically or otherwise, cutting across the core values of the institution in question, which in this case is a university.

EDELMAN J:   In what way did any of Dr Ridd’s conduct cut across the core values of the institution?

MR WALKER:   The finding with which the Court of Appeal was dealing, not by way of a contest, but by way of an accepted outcome, was that the – by way of an example – the manner of contribution to public debate contravened a number of the standards.  Respectful and courteous is just one.  This is not a special leave application which seeks to revisit the tactical decisions taken by Dr Ridd by placing all the weight of his argument on accepting breach of code of conduct, accepting the breach amounted to serious breach so as to permit termination of employment, and then placing the whole weight on what I might call the rescue effect of ‑ ‑‑ ‑ 

EDELMAN J:  Mr Wood’s submission is effectively that there is not really much of a difference between accepting a breach and then asking for the breach in effect to be confined by reference to the intellectual freedom and saying that there was no breach because of the effect of the intellectual freedom that is embodied in the code of conduct. 

MR WALKER:   The position was put very clearly, with great respect.  This would be a breach, but for Dr Ridd’s reliance upon the effect of clause 14, and in particular 14.3 and 13.3.  The case was put that if he is wrong in his interpretation of those provisions by which the code of conduct is seen in certain respects in fact to detract from a clause 14 intellectual freedom, if he is wrong in that he loses, that is, has no right of complaint to be litigated about his termination.  That is not sought to be backtracked on.  It could not be in any event and would be a most unpromising basis for an application for special leave, not even having been adumbrated in the written application. 

So we have his conduct being in serious breach of the code of conduct as an accepted fact and conclusion, but for the argument concerning 13.3 in light of 14.1, 14.2, 14.3, being an argument that says the code of conduct of which, but for this argument, I would be in serious breach, thereby detracts from clause 14 whereby it cannot have that effect of creating a standard with which I must comply.  

EDELMAN J:  Does that have the effect then that discourtesy in the meaning – given the meaning that it has been given in this case of speaking strong views in a way which may have effects upon others is necessarily then not within the intellectual freedom? 

MR WALKER:   No, that is not the way we either would put it or have put it.  We rather, if you go back conveniently to where the trial judge quotes with some emphasis passages from the code of conduct starting at page 14 of the application book, you will see that the first of the four fundamental ethical principles for this University, which is labelled “Seek excellence as a part of a learning community”, are describing norms of conduct – it is a code of conduct – which are of course supportive of the exercise of intellectual freedom unless, of course, one says that intellectual freedom must by definition always be a liberty to behave without any of the constraints of what I will call collegiality, courtesy, or respect for others. 

That would be at odds, not only with everything that one sees quoted in principle 1, but also page 17, principle 3.  It is a very long bow indeed, which finds no support in the reasoning in the courts below, to suggest that behaving with respect for others is inimical to the exercise of intellectual freedom, bearing in mind, in particular, that others have intellectual freedom, not just the first of two interlocutors. 

GAGELER J:   Mr Walker, if I could go back to the critical provisions, how is it that you read clause 13.3?  Is it as the majority in the Full Court did, paragraph 78 ‑ ‑ ‑

MR WALKER:   In 78 and 79 their Honours set out reasoning which may not be exhaustive as to the ways in which 13.3 might operate but the example given is a correct one, namely, if a code were to proscribe any of the matters in 14.2 and both cursory and close study of the code will fail to reveal any such proscription then that would be what their Honours would regard as a detraction within the meaning of that expression in 13.3. 

Now, that may not be exhaustive as to the means by which it might happen but, with respect, given the way this case was argued, it is extremely difficult, without a circular assuming of a conclusion, to see where there was any detraction by any of the provisions of the code of conduct with intellectual freedom. 

If you assume, in your argument, that intellectual freedom includes freedom from all modes of exercise of the freedom complying with norms of conduct such as respect, courtesy, lack of abuse, then if you assume that then, of course, you have by chop logic got yourself a detraction in the code of conduct but that is not how clause 14 - and it is clause 14 that is referred to in clause 13.3 - proceeds at all.

GORDON J:   The way it is really put, is it not, is that one has this, in effect, higher standard in clause 14.3 as distinct from the lower standard in the code of conduct.  When you read the two of them together, in effect, it gives a – rather than a detraction from the Code, it is a qualification, which is, in effect, a higher standard.

MR WALKER:   It is actually built into clause 14 by the last words of 14.1.

GORDON J:   It is.

MR WALKER:   Justice Gageler points, with great respect, to what has already been felt by others in this litigation, the difficulty of construing 13.3 and 14.1 and I fear it may literally be the case of drafting by committee, drafting with negotiations.  But in any event we have to deal with it.  It is clause 14 from which there cannot be detraction by the code of conduct according to what is called the party’s note.  Assuming that that ought to be given the quasi‑contractual effect that might be assumed in the course of this argument, one then moves to clause 14 and starts with clause 14.1. 

One sees there that there is a commitment of the University for acting in a manner consistent with the protection and promotion of intellectual freedom.  Now, that is the banner provisions for our learned friend’s argument.  That is said to be in accordance with the code of conduct.  So that the drafting of clause 14.1 proceeds on a basis entirely reasonable, as it happens, that read altogether and with their different registers of diction and their different matters of emphasis, the State ethics requirement, the code of conduct, and the enterprise agreement, are intended to operate together so that in accordance with the University’s code of conduct there is a commitment by the University to act and that will include by disciplining in a manner consistent with the protection and promotion of intellectual freedom which fits, of course, in 14.3 with the expression in its second sentence of a responsibility to respect the rights of

others being concomitant with the right to express unpopular or controversial views. 

Now, the words that follow thereafter in that second sentence of 14.3 were the basis for a deal of the argument against us, as if the expression explicitly of no “right to harass, vilify, bully or intimidate” had turned - we would say by a side wind – into some detraction in itself by 14.3 of 14.1 because the code of conduct is not confined simply to the proscription of harassment, vilification, bullying or intimidation.  It does all of that, and more, as one might expect in a code of conduct which was not extremely pessimistic concerning the nature of the institution for which it was being promulgated.

In that sense, in our submission, coming down as it does to 14.1, the reasoning of the Full Court concerning the relation between 13 and 14, particularly 14.1, showing no – in our submission – error of approach, had it been at least available – and we would say the preferable outcome of interpreting these idiosyncratic provisions, the role of this Court through a grant of special leave is, in our submission, difficult to justify. 

There has been an authoritative determination.  There was no fault in the approach taken to the interpretation of these kinds of texts.  There is no shocking element to the outcome and it is a case where the breach otherwise is accepted and it is a case where the terms in question said to make this apt for a grant of special leave no longer operate.

GORDON J:   Because it has been superseded.

MR WALKER:   Yes.  May it please the Court.

GAGELER J:   Mr Wood.

MR WOOD:   We find it passing strange that our learned friends say there was no shocking outcome in the circumstances where an academic has lost his job for doing his job.

GAGELER J:   It really does come down to the question of construction.

MR WOOD:   It does, your Honour, and on that question ‑ ‑ ‑ 

GAGELER J:   We are not concerned with ‑ ‑ ‑

MR WOOD:   No, I understand that, your Honour.  On the question of construction, we adopt what Justice Gordon said in response to the answer that my learned friend gave to your question about the traction.  He gave the game away, because what he said was that if in substance the code of

conduct detracts from clause 14, then there is detraction, and there was, for the reasons that Justice Gordon gave.  The code of conduct prescribed a lower standard, clause 14 a higher standard.  As soon as you introduce the lower standard, you destroy the freedom that clause 14 sets up. 

That was the error in construction.  It ignored the purpose of the clause.  It ignored the context that this was a university.  It ignored clause 13.3.  It ignored the specific limits in clause 14.3 and it eviscerated the purpose of the clause.  That is, why have this clause if the code of conduct can just be waived around to punish people for exercising their rights within it.

In our respectful submission, the error of construction is profound.  It has a major impact, in this case, but also it sets as a bar the Full Court’s decision, a very narrow view of what is contended for, what is understood to be academic freedom in agreements of this type.

GAGELER J:   Which are not in any ‑ ‑ ‑

MR WOOD:   Not in the same form, I accept that, your Honour, but have the underlying antecedents and are to give effect to the same purpose, and that purpose has been degraded by the Full Court’s decision.

GAGELER J:   Thank you, Mr Wood.  We will adjourn for a moment to consider the course we take in this matter.

AT 11.53 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.05 PM:

GAGELER J:   There will be a grant of special leave to appeal in this matter on the grounds set out in the application for special leave to appeal, which we understand to turn entirely on the construction of clauses 13 and 14 of the enterprise agreement.  A one‑day case, gentlemen?

MR WALKER:   Yes.

GAGELER J:    Thank you very much.  The Court will adjourn momentarily to reconstitute and to allow a video link to be established with Sydney.

AT 12.06 PM THE MATTER WAS ADJOURNED