Ridd v James Cook University

[2021] HCATrans 110

[2021] HCATrans 110

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B12 of 2021

B e t w e e n -

PETER VINCENT RIDD

Appellant

and

JAMES COOK UNIVERSITY

Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 23 JUNE 2021, AT 10.02 AM

Copyright in the High Court of Australia

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

KIEFEL CJ:   Yes, Mr Wood.

MR WOOD:   Thank you, your Honour.  Does the Court have our three‑page outline?

KIEFEL CJ:   We do, thank you.

MR WOOD:   The central issue on this appeal is how does the enterprise agreement resolve a conflict between the general obligations imposed by the code of conduct and the specific protection of intellectual freedom in clause 14.  The appellant contends that the intellectual freedom right is not subject to, or qualified by, the code.  It is therefore not misconduct, or serious misconduct, under the enterprise agreement to exercise a right recognised by the enterprise agreement.

Our submissions are in two parts:  firstly, on the point of construction; and secondly, on the consequences of construction.  We say six things on the point of construction.  First, the intellectual freedom right must be construed in light of its history and purpose.  Intellectual freedom furthers the purpose of both the University and its employees.  It allows for the pursuit of truth by the robust clash of ideas within broad limits.  Intellectual freedom is an ancient principle foundational to a university.  The freedom was significant to the makers of the enterprise agreement as shown by its inclusion in the statutory agreement.

The Full Court was wrong to put history and purpose to one side.  The right should not be read as if unimportant to the enterprise and its employees.  The Full Court said there was little more than historical interest in the purpose.  They said there is little to be gained in resorting to historical concepts.  They said there is no common understanding, that is, the majority, of the full breadth of academic freedom.  There is of course no common understanding about the concept in its full breadth, but at its core, the concept is not devoid of meaning, as Justice Rangiah said in dissent. 

Second, and this is crucial, the code and the intellectual freedom right conflict with each other.  The code of conduct is a prohibition.  It prohibits employees from doing certain things.  It is the vehicle, or gateway, to disciplinary action by the University.  Intellectual freedom in the agreement is a permission, a freedom, a right.  It is a right conferred upon employees that is a protection from the University.  The case put by the University ‑ ‑ ‑ 

KEANE J:   Does it protect them from their colleagues as well?

MR WOOD:   Does the right?

KEANE J:   Yes, given that these are boilerplate provisions, and that every employee gets the right.

MR WOOD:   It would depend on the circumstances, but it is primarily protection from conduct by the employer, that is, attempts to censure some sort of action taken in the employment or disciplinary action.  It is recalled that the case was presented on behalf of the University on the basis that the intellectual freedom right – and these are the words from the pleading:

is subject to the Code of Conduct and can only be exercised in a manner that is consistent with the Code of Conduct.

Our third point on construction is the code does detract from clause 14.  The University disciplined Dr Ridd on the basis that the clause 14 right was subject to, as it had pleaded, the code.  By definition, in the communications that were given during the process of discipline and in the pleading, by definition a detraction.

The case has changed slightly on appeal so that it is not put that the code is subject to – sorry, that the clause 14 right is subject to the code, merely that the code is the mechanism by which intellectual right is furthered.  But the code does detract from the right.  It prohibits conduct that is otherwise permissible and protected by clause 14.  Justice Rangiah in dissent said – and this is at paragraph 264:

it is difficult to see, for example, how an academic could make a genuine allegation that a colleague has engaged in academic fraud without being uncollegial, disrespectful and discourteous and adversely affecting JCU’s good reputation.

That is at the core appeal book, page 207.  The primary judge said much the same thing and the majority in the Full Court at paragraph 89 at appeal book 161 quoted what the primary judge had said, but then made nothing of it.  The primary judge said:

It may not always be possible to act collegiately (sic) when diametrically opposed views clash in the search for truth.

The Full Court also noticed that the code of conduct imposed less certain standards, more vague standards in paragraph 86 of their reasons, but did not draw the conclusion that ought therefore to be drawn.  Because these are vague standards in the code of conduct, they detract from the right in clause 14. 

The point can be made good by reference to a couple of instances – we do not have to go to all 17 findings that the primary judge made but the central findings, for example, the interview on TV which is not found in the Full Court’s decision - one has to go to the primary judge’s decision – in that interview which is set out at paragraph 81 in the primary judgment at court book 32 to 39 ‑ ‑ ‑

GORDON J:   This is in respect to finding number 2?

MR WOOD:   This is in respect to finding number 2.  I am going to finding 2, then finding 1, then finding 12 just as examples.  I could go to any of them, but these are perhaps the most stark examples.

GORDON J:   What is the point of taking us to these?

MR WOOD:   They show in practice, having regard to the findings that were made by the University, that is, the University charged Dr Ridd in these seven – in fact, the charges were much broader, but made findings, 17 of which were challenged by the primary judge - each of those findings was made on the basis that the things that Dr Ridd had done constituted a breach of the code of conduct.

GORDON J:   I think that is accepted.  That is the point of the appeal, is it not?  I thought that you were taking us to 2 and 1, that is, findings 1 and 2, to demonstrate that in the Full Court the majority found that that conduct did not infringe clause 14.

MR WOOD:   It is for both reasons, your Honour.  It sets up the detraction.  It shows you in the facts the detraction from the clause 14 right and shows you there was an exercise of the clause 14 right.  It shows both things, because what was going on in the TV interview was that Dr Ridd was making some serious points. 

He was saying the science, in his view, was not properly tested, it was not properly checked, and he gave some reasons for that view.  They were threefold.  That is that there is a broader crisis within science of replication.  It is in the biomedical sphere.  Why would it not apply to environmental science as well?  He also said peer review does not work and he gave an example of his own work in sedimentation, saying that the sedimentation research is not properly checked – not properly quality assured.

He also said that the scientists were not objective – they were emotionally biased – and he gave three reasons for that.  He said the subject matter of their research – the reef is a beautiful thing – so you understand that.  He said you never hear from these scientists when the reef grows back, and he said they will not debate.  Those are the reasons, he said, for his assertion that there was a lack of objectivity, and also for his submission – or statement on television that the research was not being properly checked, tested or replicated.

Now, he was charged with a contravention of the code of conduct and at core appeal book page 40, paragraph 82 of the primary judge’s reasons, the University sets out in relation to this second finding its view as to why this constituted a breach of the code of conduct and why the right in clause 14 did not protect Dr Ridd – Professor Ridd, as he then was.  It says in the judgment, at paragraph 82:

your criticism of key stakeholders of the University . . . is  inconsistent with your obligations under the Code of Conduct, including to criticise “in the collegial and academic spirit of the search for knowledge, understanding and truth” and “treat fellow staff members, students and members of the public with honesty, respect and courtesy”.  As outlined in the Further Allegations Letter, academic freedom under the Enterprise Agreement is expressed to be in accordance with the Code of Conduct.

The University is not satisfied that it is “in the collegial and academic spirit of the search for knowledge, understanding and truth” or respectful and courteous to:

(a)comment to the effect that we can “no longer trust” scientific research . . . 

scientists who work for the AIMS and the ARC Centre are “emotionally attached” to the reef and their scientific research is “not objective”,

irrespective of whether you genuinely believe these comments to be true or made these comments in a calm manner . . . 

the University is concerned that you have expressed your views in a manner that is inconsistent with the professional standards expected by the University and reflected in the Code of Conduct.

After review of the Further Response, I am not satisfied that the conduct . . . which further denigrates AIMS and ARC Centre as was clearly outlined to you . . . the University does not accept, that your conduct is consistent with the Code of Conduct, as it had and has the capacity to damage the reputation of AIMS and ARC Centre and therefore the relationship of the University with these bodies and by association the reputation of the University.

GAGELER J:   Mr Wood, I thought this part of your submission was concerned with the construction of the enterprise agreement.

MR WOOD:   Yes, your Honour.

GAGELER J:   Are we getting to that?

MR WOOD:   Well, I am pointing out, by reference to the facts as found, how the code of conduct actually does detract as a point of construction by reference to the facts.  The issue of construction has to attach to some facts, and I am trying to do it by reference to that.

GAGELER J:   But the code of conduct is an instrument made under the Public Sector Ethics Act, is it not?

MR WOOD:   Yes, your Honour.

GAGELER J:   So you have this State instrument that is referred to in this federal instrument.  What does clause 13.3 mean when it notes the intention of the code of conduct?

MR WOOD:   What it is talking about there is that it is understood that there is a code of conduct that applies generally to the staff, and it is saying, as the makers of this enterprise agreement can, by tailoring their own arrangements in a specific way to their enterprise, pick up or reject parts of that code of conduct.  So what the makers are saying is we understand the code of conduct applies generally to university staff, but in the particular circumstances of clause 14, where an academic or, indeed, other staff member, but primarily an academic, is exercising the right or freedom within clause 14, the code of conduct does not apply to that conduct, that is, it does not detract from the right you have in clause 14.

So that, viewed as a whole, looking at the instrument as a whole, the instrument has a process for discipline under clause 54.  It has a protection in clause 14.  It acknowledges that there is a general code of conduct that is in existence, and it says in relation to behaviour, behaviour that falls outside clause 14 and contravenes the code of conduct will constitute misconduct or serious misconduct.  Conduct that falls within clause 14 is protected from punishment as constituting a contravention of the code of conduct, and thereby misconduct or serious misconduct.

So it is simply an exception that this University, in knowledge of its, or understanding of its special relationship with its employees, particularly academics, has said the code of conduct does not apply to this particular type of behaviour, so that the foundational aspirations or purpose of the University can be achieved, academics can speak their mind without fear of censure or retaliation from the University.  That is how it all works.

GAGELER J:   So in other words, if you are within the right conferred by 14(2) you are not subject to an obligation under the code of conduct?

MR WOOD:   That is right, your Honour, exactly.  That is exactly ‑ ‑ ‑ 

GORDON J:   Does that mean any more than “do not detract”, which is a not uncommon legislative or drafting technique, is to be read in that way, that the first question is whether or not the conduct that is the subject of the complaint or inquiry falls within clause 14 and meets the internal limits of clause 14, and if it does, consistent with what Justice Gageler put to you, that is the end of it, but if it falls outside of it, it may therefore, itself, have to satisfy the requirements of the code of conduct?

MR WOOD:   That is the – exactly, your Honour.

GORDON J:   When you describe the “right” in clause 14, that is a pregnant statement, is it not, because the right has other things attached to it, including the rights to ensure that you do not – that you would respect the rights of others.  You do not defame them, you do not ‑ ‑ ‑ 

MR WOOD:   It does not say that, your Honour.

GORDON J:   That is why I am asking you.

MR WOOD:   I am sorry, your Honour.

GORDON J:   So how – what is the right in clause 14?

MR WOOD:   The right, having regard to the nature of the instrument, that is, the nature of the University and its goals and aspirations, the nature of the employees who will be subject to the agreement, is to give effect to the idea that there should be maximum freedom to allow academics to be able to express their opinions even where their opinions are unpopular or controversial, as clause 14 says, particularly where they are unwelcome, without fear of repercussion from the University.

GORDON J:   I am sorry, my question is a bit more direct than that.  In 14.3 it says:

All staff have the right to express unpopular or controversial views.

That is the point you have just made.

MR WOOD:   Yes.

GORDON J:  

However, this comes with a responsibility to respect the rights of others –

That must include defamation:

and they do not have the right to harass, vilify, bully or intimidate ‑ ‑ ‑

MR WOOD:   Remembering what we are talking about here, your Honour, is not something that is a general prophylactic for the employee who is covered by clause 14.  All it is is setting up an arrangement between the employer and employee, and the employer is saying, in effect, reading the instrument as a whole, “We won’t punish you - we won’t take adverse action against you if you’re within clause 14”.  What it is not saying, or it is not doing is saying, “You are therefore removed from the general law or you don’t have other obligations to individuals which you might – you might – contravene even by exercising that freedom”.

EDELMAN J:   But you would accept, for example, that vilification is not within the protection afforded by 14.3, and defamation would not be within 14.3, would it?

MR WOOD:   It is probable, but it really depends, because it is probable just because of the way in which the defences would operate in a defamation that the limits of clause 14 are probably consonant with the limits of a defamation and any defences that might arise.

KIEFEL CJ:   You mean such as qualified privilege?

MR WOOD:   Such as qualified privilege, exactly.  But it is not necessarily the case, because we are dealing with two separate ideas.  One is, this is the University saying to academics, “Please go out and express your opinions and do it in as full‑throated manner as you can so that in the clash of ideas we’ll find the truth”.  That is the objective of this clause.  The objective of the law of defamation is to protect reputations. 

Now, you would think in most circumstances the exercise of the clause 14 right would not constitute a defamation, but it might.  It might.  But that is not the point.  The point is what is clause 14 doing vis-à-vis the University?  The university is saying, “You can speak” – I was going to say, “speak truth”, but it is not truth – “speak your honest opinion about your subject matters that are within your field of expertise in order to aid in our objective to search for and disseminate knowledge and, as long as you don’t harass, you don’t vilify, you don’t bully and you don’t intimidate and you’re within the scope clause 14, we won’t punish you for that”.

KIEFEL CJ:   But disrespectful conduct is all right?

MR WOOD:   Disrespectful conduct is not ‑ ‑ ‑

KIEFEL CJ:   Is not prohibited by clause 14?

MR WOOD:   No, your Honour, because you would just destroy the whole point of clause 14.

KEANE J:   But what is the effect then of 13.2 where:

JCU is committed to achieving and maintaining the highest standards of ethical conduct and through the Code of Conduct will ensure that staff:

. . . 

·Behave with respect for others –

This is all the employees who are ridiculed or disparaged or defamed but not vilified.  If the University does not do something to stop that happening is JCU in breach of its obligation under 13.2, dot point three?

MR WOOD:   Well, your Honour, the obligation under clause 14 – what the makers of the agreement were trying to do was to provide a safe space for academics to speak and they have set the limits out in clause 14 so that there is ‑ ‑ ‑

KEANE J:   Well, and for all of them.

MR WOOD:   Of course, your Honour.

KEANE J:   For all of them, for the universitas.

MR WOOD:   Of course, your Honour, and in those circumstances it is very hard to see how the type of conduct that would infringe upon some other individual’s rights would fall within clause 14, given its limits, in a sense that is not fanciful, that is, something that would be said that would enable a member of the University to say that this right had been transgressed.

KEANE J:   Well, you might have a situation where one member of the faculty says that another member of the faculty’s science is wrong, and terribly wrong, and illustrates and explains why that is so.  That is plainly within 14, and also plainly accommodating 13.2.  But if one member of the faculty says, my fellow faculty member’s science is wrong because that person is incompetent, and also in that person’s publications that person publishes false material knowing it is false, you certainly have a problem with 13.2 if the University does not do something about it, do you not?

MR WOOD:   But then you are outside clause 14, your Honour, because the construction of clause 14 only allows for the expression of honest opinion.

KEANE J:   But if you honestly believe that they are incompetent and dishonest and you say so, your case is they are allowed to do that under 14, even though it is inconsistent with 13.2?

MR WOOD:   Absolutely, because 13.2 has to be read with 13.3 and the “respect for others” has to accommodate the freedom in clause 14, that is, academics should be free to say that sort of thing if they honestly believe it.  If they honestly believe that another academic’s work is wrong, is fraudulent, that is being prepared – produced in a dishonest manner, then in one sense they are obliged to say it because of the nature of their role but, leaving that aside ‑ but they are certainly protected from saying it because of clause 14.

KEANE J:   The protection is not simply limited to allowing them to make their points as objectively as they can, without descending to the attribution of bad motives or incompetence to other members of staff.  Because you are saying they are wrong, you can also say they are very bad.

MR WOOD:   Well, it depends if that would constitute harassment, vilification, bullying or intimidation.  The point of having the limits put at that level is to enable a debate to occur along those lines without self‑censorship, so an academic can say, “I think what is going on here is wrong, I think there is funding bias”.

KIEFEL CJ:   You are saying that clause 14 operates to provide a complete immunity except for where there is harassment, vilification, bullying, or intimidation.  Is that what you are saying?

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

KIEFEL CJ:   So that there would never, on your construction of clause 14, arise a situation where, when a complaint was made, there could be an inquiry into whether or not the expression of the intellectual freedom and the views stated had to be stated in the way that they were, wholly disrespectful, perhaps defamatory.  On your view that inquiry would not be possible - an academic would be absolutely entitled to say what they said in the way in which they chose to say it.

MR WOOD:   Indeed, as long as it did not harass, vilify ‑ ‑ ‑ 

KIEFEL CJ:   So that is a little more than the expression of the idea.  Your construction suggests, by pushing out, by the code of conduct not informing clause 14, that there is complete liberty to say- to use pejorative language and disrespectful language when it may, in some cases, not actually be necessary.

MR WOOD:   Necessity is not the test, but as long as ‑ ‑ ‑ 

KIEFEL CJ:   Because you view it as an immunity?

MR WOOD:   Because it is an honest opinion.

KIEFEL CJ:  There are two - I think the respondent is, in relation to the construction of clause 14, focused on two particular matters within it.  The first is clause 14.1, which points out that the University is committed to the:

promotion of intellectual freedom within the University and in accordance with JCU’s Code of Conduct -

and clause 14.3, which points out that:

staff have the right to express unpopular or controversial views.  However, this comes with a responsibility to respect the rights of others –

Those seem to be the two which imply that the code of conduct is to have something to say about how clause 14 is to operate, and the limits within which it is to operate.

MR WOOD:   That is true, your Honour, to this extent, that there are two instruments that the University says - agrees to apply.  One is a protection, one is an obligation - in circumstances where there could be ways in which you could use the code of conduct to protect and promote intellectual freedom, but not where it detracts from the right, so that the right is eviscerated. 

Clause 14.1 does not bring in by a side wind, particularly by reference to clause 13.3, all the obligations in the code of conduct.  What it says is this is an exception to those general obligations in the code of conduct.  Knowing that, if the code of conduct were to be applied to this sort of behaviour, then it would be impossible or near impossible to have the level of discourse that allows the frontal full clash of ideas in the search for truth.

KIEFEL CJ:   Your position is that the code of conduct is clearly incompatible with clause 14?

MR WOOD:   In those circumstances, yes, your Honour, because ‑ ‑ ‑

EDELMAN J:   I wonder if there might be a more nuanced position which does not require a construction of 14.3 to ignore the words “respect the rights of others”, but which affords those words some content such as, for example, where the rights of others are legal rights that are recognised by the law.  So it would not include, for example, a right not to be disrespected or a right not to be upset or to be hurt or to have your work called into question but it would include, for example, subject to defences a right not to be defamed, statutory duties not to reveal particular confidential information, not to reveal national security information.  In that way, clause 14.3 in referring to proper legal rights would not be purporting to confer upon an employee an immunity from the law of the land.

MR WOOD:   That is a possible construction, your Honour, in terms of the overall construction of the instrument, but here we are not – that issue has not arisen.

GORDON J:   Well, it arises in this way, Mr Wood, which is the reason why we raised it with you before.  We have to construe clause 14.3 and it has three parts to it.  It has the first - the recognition that staff have a right to express unpopular or controversial views.  The second bit talks about the matters that both Justice Gageler and Justice Edelman and I have raised with you – what are the rights and how do they sit with the fact that you do not have the right to harass, et cetera.  Then the third is the bit we have not yet come to, and that is the last sentence in 14.3, and that is recognising that it is arising in a certain context, including section 5 of the University’s own Act which identifies what the university is set up to do, which is to provide a mechanism and a forum for these views to be expressed.  We are trying to find a balance as to how it is 14.3 is to be construed and what it entails.  So to say it does not arise I think is to ignore the very task we are faced with.

MR WOOD:   I did not mean it in a dismissive way, your Honour, but I just simply meant to say the issue in this case is not to – the particular issue is not what does the phrase “the rights of others” mean.  All we are saying, whatever it means – and it may well mean what Justice Edelman says it means – it does not mean that you incorporate the code of conduct by way of a side wind in the face of the clause 13.3.  That is what it does not mean. 

Now, perhaps it does mean what Justice Edelman said.  Perhaps it does go beyond that the limits are more than harassment, vilification, bullying and intimidation and do include the sort of legal rights that Justice Edelman spoke about.  But any contravention of those legal rights does not arise on this case because that was not the test which the University used to discipline Dr Ridd.

GORDON J:   The University used the test of the breach of the code.

MR WOOD:   That is right.

GORDON J:   Here you have, as I understand it, common ground that there was no harassment, vilification, et cetera, by your client.

MR WOOD:   That is right.

GORDON J:   And no other right in the context of 14.3 was said to have been contravened.

MR WOOD:   That is right, except for the rights that are found in the code of conduct.  This broader issue of construction in relation to clause 14.3, in our respectful submission, does not arise, but if it did arise it could be accommodated in the way that Justice Edelman has said.  The way in which clause 14 ‑ that leaves clause 14.1 that is then left to do a lot of work in the face of the fact that this is a university – the function of a university, the purpose of the clause, the fact that this clause which you will not see in any other enterprise agreement outside of the university sector has been included in this agreement, the nature of academic freedom as being foundational to the University in order to fulfil its mission – and clause 13.3 having regard to the fact that clause 14 has been calibrated to allow a contest of ideas to enable the truth to win out ‑ ‑ ‑

GORDON J:   Can I ask one other thing about clause 14?

MR WOOD:   Yes, your Honour.

GORDON J:   Could you explain to me how you see 14.4 operating and whether if the code was to, in effect, overlay the other way, contrary to your argument, it would detract from it?  So, 14.4 is dealing with expressing disagreement with university decisions and processes.

MR WOOD:   And 14.4 links in with the third dot point in 14.2 to:

Express opinions about the operations of JCU and higher education policy more generally -

The foundational basis of this part of the clause is not the pursuit of knowledge through the clash of ideas but another aspect that is foundational to the University, that is the idea of some sort of staff autonomy and that ‑ ‑ ‑

EDELMAN J:   At some stage – you may wish to do it now, or later – you are going to need to explain to us how 14.4 is reconciled with 54.1, and how those two provisions operate in harmony.

MR WOOD:   In terms of the confidentiality directions?

EDELMAN J:   In terms of the matter of construction first, before one goes to the confidentiality direction.

MR WOOD:   Perhaps I will come to that question after I have answered Justice Gordon’s question, your Honour.

GORDON J:   I think they are linked.  I think what we are trying to see – we are trying to look at clause 14 as a question of construction and so at the moment I think that 14.4, as well as 14.5, might impact upon the way in which we construe it and the limits of it because if you look at it, at one level there is some cascading internal limits that are built into clause 14 itself.  We have dealt with some of them in clause 14.3 and you – I do not think accept or you may accept the proposition about the reference to rights of others.  But you have 14.4 and 14.5 which also – one you have some internal limits.

MR WOOD:   In the sense that 14.4, together with the third dot point in 14.2, tried to enable the vision of a self‑governing community of scholars to be given effect.  Now, of course, that vision has to – bumps up against modernity in the sense of why universities are actually governed these days – but what it tries to do, is it tries to give to the academic cohort the ability to have some say in university governance and it does that by the use of dot point three and 14.4.

So, what it is saying is, as a function of your right, as an academic, in the community that comprises the University, you have a right to go out and express opinions about the way in which the University operates, you have the right to express disagreement with decisions of the University, and you have the right to express disagreement with the processes used to make those decisions.  Those rights, found in 14.2 and 14.4, allow an academic to protest, just as Dr Ridd did in this case, about the fact that he was being punished for the exercise of the other parts of his right to intellectual freedom - that is dot points one and two and 14.2 as expanded upon in 14.3. 

Now, that is the way in which the clause works, trying to give effect to those two foundational or core aspects of academic freedom, both the freedom to express ideas in a forceful way so that through the force of the expression truth will emerge, and also to enable to some extent the academics to have a role in, through expression of opinion and criticism, the decision‑making and processes of the University.

Now, the way in which that operates in terms of clause 54, to come back to Justice Edelman’s question, is that the University cannot, in contravention of clause 14.2 and 14.4, direct the academic not to disagree with their decisions - not to express disagreement with their decisions, not to express disagreement with the processes used to make their decisions, and not express opinions about the operations of JCU. 

That is why I said, in answer to your question, Justice Edelman, that it is best answered by reference to the confidentiality directions, because the confidentiality directions, what they tried to do was to prevent Dr Ridd exercising his rights under clause 14.2 and 14.4, because they presented a complete silencing of Dr Ridd.

He was not allowed to speak about any matter relating to the disciplinary process, the fact of the charge, what he had been charged with, what his response was, the fact of the punishment, the nature of the punishment, every aspect of those – sorry, because the directions were so broad, what they did was two things.  One is they prevented the future exercise of those rights in clause 14.2 and 14.4 because he was not allowed to say anything about what had happened to him. 

What they also did, looking backwards, was they constituted unlawful direction because they were attempting to hide an unlawful process, if we are right on our point of construction.  If we are right on our point of construction that what Dr Ridd did was within his right in clause 14, to say what he said to the journalist, to say what he said on TV, and he was punished for that, that is one contravention of the clause.

Another contravention of the clause, that is, in a way that makes the later direction unlawful, is the attempt to make, to keep secret, that which was unlawful, on our construction.  Now, that might not in a different situation apply.  If there was no contravention of clause 14 then the confidentiality directions in that aspect would not be regarded as unlawful.

EDELMAN J:   So, on your construction a clause like 54.1.5 would only operate if the disciplinary process were in relation to matters that are outside clause 14.

MR WOOD:   In short point, yes, but if they were not – that is, if the directions did not infringe upon the rights in clause 14, yes.

EDELMAN J:   But one would only know that after, presumably, a court hearing that had determined whether or not you were within or outside clause 14.  You could never know ‑ a person subject to, say, a confidentiality direction would never know whether they were caught by 54.1.5 or not because it would depend upon whether their arguments about clause 14 were correct or not.

MR WOOD:   That is right, your Honour, in the sense that the University never approached this over the three years of disciplining Dr Ridd – Professor Ridd – on the basis that clause 14 had anything to do with this.  So, everything they did was predicated on the basis that there was a contravention of the code of conduct because he was disrespectful, discourteous, and failed to uphold the reputation of the University.

If they had have charged and proceeded against him on the basis of clause 14 then this issue would have come to light and they may have recognised that they could not give a confidentiality direction in as broad a terms.  But because they did not have any regard to the clause 14 rights they imposed confidentiality directions that were in contravention of those clause 14 rights and which were unlawful because they tried to keep secret that which was an unlawful process, that is, the charging and prosecution and punishment for the exercise of clause 14 rights.

GAGELER J:   There are a couple of different strands of thought here, can you tease them out?

MR WOOD:   Yes, your Honour.

GAGELER J:   Are we here at paragraph 13 or 14 of your outline?

MR WOOD:   I have moved to 13, but perhaps I can ‑ just before I get to there ‑ ‑ ‑

GORDON J:   Could I just ask one more question ‑ ‑ ‑

MR WOOD:   Yes, your Honour.

GORDON J:   ‑ ‑ ‑ maybe I am being slow here.  If one looks at clause 14.5, which is that “Staff . . . must adhere to the highest standards of propriety and truthfulness”, which you accept is part of clause 14 and it has to be the subject of part of the way in which you construe the clause, it appears in identical terms in the code of conduct.  So, someone has clearly turned their mind to the way in which clause 14 should be constructed.  Do you rely upon any of those matters as part of the construction exercise?

MR WOOD:   No, your Honour, because what happened here is there was a group that put together the code of conduct, that is, a group within the University, and they created a general code to govern employees in everything they did, and then ‑ ‑ ‑ 

GORDON J:   I would have thought it helped you.  I thought it would be a mechanism whereby somebody has put together a clause 14 with its own internal limits, which either, if not inconsistent in some respects, impose different standards, because someone has made a conscious choice to include, in clause 14, different standards.  Some of them are the same, you can see a mirror between 14.5 and some aspect of the commentary on principle 1 under the code, but not all of them.  Is that why it is “do not detract”, is that why 13.3 is in those terms, in the way in which you might read it?  I do not know.  I mean, I am surprised you say you do not undertake that sort of construction exercise.

MR WOOD:   We just make this point, your Honour, which is, I think, we are in agreement.  The makers of this agreement had the code of conduct in front of them.  As it is a federal instrument, they can pick up any bits they want, and they can reject any bits they want.  That is the freedom they have in making this federal instrument which prevails over inconsistent State instruments.  What they did is they saw the code of conduct and they said that does not really work in circumstances where academics are criticising the University, and where academics are expressing their professional opinion in the search for truth.

So what we want to do in this agreement is make sure that an academic cannot be prosecuted against for misconduct or serious misconduct in breach of the code, and the way we do it is we pick up some ideas from the code and some ideas which give effect to historical understandings of concepts concerning academic freedom.  That is what they did here. 

What they then said is, for the rest of the code, forget it, that is not relevant for clause 14, if it detracts from clause 14.  That is any maker of any instrument, indeed, the Parliament, Federal Parliament can do the same thing in relation to State law.  Here you are just talking about the makers of a federal instrument who are free to do what they like in relation to an instrument arising under State law, and they decided what to do and they set it out.

The very point of this case, the very point, whether an academic exercising the rights under clause 14 can be proceeded against for breach of code of conduct, they understood, and they said no, partly by the way they drafted clause 14, and particularly, by clause 13.3.  That is what happened, and it is, we say, perfectly intelligible when one has regard to the broader context as to the making of this agreement, with the background of the code of conduct, the background of the industrial parties, the background of the fact that this is a university and the ambitions and mission of the University.  I do not know if that answered your question, your Honour.

GORDON J:   Thank you.

MR WOOD:   Lastly, on that point, we of course say, in response to the sort of questions that are raised by – I am just dealing with our fourth point, and then I will come onto the point 13, if that is convenient.  We of course say that clause 14 is not free of all constraint or responsibility, as our learned friends say.  It is absolute or unqualified. 

It is qualified in the way that we have indicated, that is, in relation to dot point 1 and dot point 2 in 14.2 by reference to 14.3.  It is qualified in the sense that it is only an intramural protection.  It is qualified because it only protects honest opinion, and it is otherwise qualified in the manner – in the way in which you would expect from a university trying to afford its employees the sort of latitude they need to perform their task. 

There are some times that an academic does need to say not only something is wrong, but the reason that it is wrong and that reason that it is wrong can be extremely confronting.  It might be that the research is fraudulent.  It might be because the researcher has a funding bias because of the way in which they are funded.  It might be because the researcher is negligent in the way they do things. 

Now, that is the way in which you prove that the research is wrong.  You point to these things – funding bias or negligence or some other bias – to make good the point that you cannot rely upon this research.  What happens as a result?  The other side comes along and says, “No, that’s not right.  There is no funding bias.  No, this work isn’t negligently produced.”  Then, as an operation of those ideas the truth emerges, but reputations are damaged, because one side of the debate, depending on where the proof ends up, is proved to be wrong.  You cannot do that in a respectful or courteous way and the reason respect and courtesy and reputation are not included in clause 14 is to enable that sort of debate. 

Leading then to our fifth point of construction, we have to recall here too that what is going on is that the court is interpreting an enterprise agreement.  It should not be interpreted in a vacuum divorced from industrial realities.  Industrial agreements, as I have said, are made for various industries in light of the customs and working conditions of each, frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. 

Now, this is not perfectly drafted, but it is an enterprise agreement that has to be interpreted in that way and one has to step back and say what were the parties to this agreement trying to achieve?  They were trying to give maximum protection to an academic speaking their honest opinion in order that the clash of ideas might lead to the discovery and dissemination of truth.  When that is understood, having regard to the principles of construction, it all starts to make sense.

It cannot be misconduct for punishing an academic for doing their job, and that is why the code of conduct was removed from, that is, that is why this right prevails over the general obligations in the code. 

Moving then to point 12, every finding that was made by the University was to the effect that the express rights in clause 14 were either heavily qualified by the code or converted into something different.  So the right to criticise in 14.4 and 14.2, through the operation of the code in each of the third, fourth, sixth, seventh, 12th and 13th findings, was converted into an obligation to uphold the reputation of the University, or to put it another way, the right to disagree with disciplinary decisions was so heavily qualified that the only way you could do it was in a way that upheld the reputation of the University.

That eviscerates the right.  Having regard to the understanding of the basis of the right, in the 14th and 15th and 16th findings, the right to criticise, to disagree with decisions and processes, to express opinions about the operations of the University, was converted into an obligation not to be satirical, not to be untruthful, and not to be disrespectful and as we have seen, the right to express professional scientific opinion was qualified by an obligation to protect the reputation of the University, and to be respectful and courteous to other academics. 

Now, the way in which the code was applied in every finding, from 1 through 17, either highly qualified or eviscerated the right in clause 14.  There is good reason for it, because the University never had any regard to clause 14.  They were told, from an early stage, that what they were doing was infringing that right, and they said no, you are wrong, the right in clause 14 is subject to the code of conduct.  If they are right about that, everything they have done is correct.  If they are wrong about that, having never had regard to the obligations under clause 14, is it any wonder that everything they did contravened clause 14? 

Moving then to the confidentiality directions, I think you said, Justice Gageler, we were bringing together a couple of concepts in my answer to Justice Edelman.  I could just perhaps take the Court to one of - two of the confidentiality directions to explain the point that we make - the third and the fourth one, which are found at court book 56 and 57, paragraphs 160 and paragraph 167. 

This so‑called confidentiality direction was given, remembering there was a 2016 process, a 2017 process, and a 2018.  The 2016 process led to a first censure, 2017 process the final censure, 2018 termination.  This is the middle of the 2017 process, which went for three months.  It started with a charge about appearing on TV and morphed into 25 charges about what Dr Ridd had said on his private emails to students, colleagues, members of staff.  Here we are in the first half of that second process, so we are simply dealing with the charge about appearing on TV, and Dr Ridd is being told, all matters to be kept confidential:

I confirm that you are directed to keep the details of the allegations –

Now, the allegation is that you appeared on television and you disrespected fellow scientists and you failed to uphold the reputation of the University by appearing on TV:

and all matters relating thereto (including –

and here they are reaching back to the 2016 process and they are saying, and additionally you cannot say anything about the first censure you got back in 2016:

but not limited to, the formal censure you received on 29 April 2016) . . . 

You must not disclose or discuss these matters with the media or in any other public forum, including social media.

You are, however, allowed to discuss these matters with your immediate family –

That was the first time during this process, which had stretched out for a month, that that concession that you are allowed to discuss matters with your immediate family was made and Dr Ridd was later charged with having spoken to his wife during that period, that is, between the period 24 August and 19 September.

Then, moving over the page to the fourth confidentiality direction, and this is at the end of the second process, that is, the 2017 process which had taken another two months, and the 21 November 2017 letter where Professor Ridd, as he then was, was given the final censure.  The University confirms at 167 that:

the disciplinary process and all matters relating thereto (including but not limited to this censure) –

so the censure found in the letter of 21 November, the final censure:

remain strictly confidential and that you are directed not to discuss or disclose these matters to any person including the media or in any public forum.

Now, we could say the same about the first, the second, the third or the fifth confidentiality direction, but that direction contravened the right in clause 14 because it prevented Professor Ridd from expressing opinions about the operations of JCU insofar as he was concerned, that is, they are suppressing academic freedom and preventing me from saying anything about it.  It also in the same way prevented Professor Ridd from expressing disagreement with that decision and the processes used to make that decision because he had to keep everything confidential.

EDELMAN J:   But that would apply to any person subject to a disciplinary proceeding, would it not?

MR WOOD:   It might in some ways, your Honour, but remember here what we are talking about – let us just deal with the beginning and the end.  We are talking about a charge that you appeared on TV; that had to be kept confidential.  We are talking about a finding that you are guilty of a breach of the code of conduct for appearing on TV.  Now, those things would not normally – and they are certainly not covered by clause 54 – be the subject of any confidentiality order.

There might be things that are done during the process that might be the subject of a confidentiality order under clause 54, but certainly, even in this case, there is nothing there – because, remember, he was charged on the basis of what he said on TV in 2017, and then charged again in October 2017 on the basis of what he had said in 25 private emails.

So, there is nothing confidential about anything that was the subject matter of the charge – nothing.  But even if there was, the confidentiality direction just went too far and contravened clause 14 because you cannot, under clause 54 – even if clause 54 was to prevail over clause 14, which it should not – but even if that was the case, you cannot keep confidential the fact of the charge – you cannot keep confidential the fact of the punishment.

EDELMAN J:   But, as I understand your submission, you would accept that you can if, for example, he had gone on television and vilified ‑ ‑ ‑

MR WOOD:   Of course.

EDELMAN J:   Then, you could keep it confidential.

MR WOOD:   Yes, of course.  Yes, you would, because you would be outside clause 14, in those circumstances.

KEANE J:   But what if it is contested?  What if there is a contest about – what if there is a complaint by another academic who says, “I have been vilified”, your client says, “No, you have not”, and the University has to decide?  In the meantime, it says to your client, please keep these proceedings confidential, no doubt because provisions that provide for confidentiality of the process are designed to ensure that a complainant with a grievance is not intimidated by a respondent with a megaphone ‑ ‑ ‑

MR WOOD:   Indeed.

KEANE J:   What happens then?

MR WOOD:   Well, it could be that the actions in relation to that confidentiality order – that is any contravention of that order would be serious and wilful misconduct, because it is not protected by clause 14 because it is vilification.

KEANE J:   But while the question as to whether it is or is not is not determined?  While the University’s processes are going on, a direction to keep the processes confidential is ignored.

MR WOOD:   In those circumstances, which is not this case because the directions here were far too broad because they dealt with the charges and the suppression of the charges and the suppression of the result.  But leaving that aside, so that on any view, in this case, these directions unlawful.  In relation to the case that you posit, your Honour, there might well be circumstances in which, leaving aside clause 54, just a direction that an employer gave to an employee in the circumstances might be – would be lawful and reasonable, and might not be not lawful and reasonable because of clause 14 – because of the nature of the circumstances.  Now, we could well imagine those circumstances.

KIEFEL CJ:   Would the person complained about then come under an obligation under clause 14.4 to give a reasonable opportunity for the process to be followed?

MR WOOD:   The person who is being complained about?

KIEFEL CJ:   The person who has made the statement and another party has said, “They vilify me”, and there is a dispute about it – that is the person who has claimed the right to exercise intellectual freedom – under clause 14.4, there is some obligation to give reasonable opportunity for processes to be followed.

MR WOOD:   That may be.

KIEFEL CJ:   That would probably catch that person in that circumstance.

MR WOOD:   It probably would, and there is just none of that in this case because there was no – what happened was that Professor Ridd abided by the confidentiality directions until it got to the stage where he said, “I can’t do my job.  I can’t tell the world about what happened to me, and I can’t because of the speech directions because I’m subject now to the code of conduct under threat of termination.  I can’t actually go and do my job”.

KIEFEL CJ:   I think we understand that your submission is that the confidentiality directions were too broad.  We are more interested in seeing how clause 14.4 actually gives rise to some active obligation in certain circumstances.

MR WOOD:   It might in those circumstances, your Honour, we would have to accept that.  There is tension between clause 54 in some circumstances – not this circumstance, but in some circumstances.  If the material that was the subject of the charges was actually confidential and if the order that had been made – the confidentiality order had been calibrated to deal with that, then those sorts of issues would arise.  But it just does not arise.

GORDON J:   It does not arise because it was not asked ‑ ‑ ‑

MR WOOD:   It was not asked in ‑ ‑ ‑

GORDON J:   ‑ ‑ ‑  by the process that was adopted because they had put their focus on the code and not clause 14.

MR WOOD:   That is right.  There was just no attention paid to this and to an extent they would be – in some senses the University would be – leave aside whether or not the order would be unreasonable, but in some senses the order subject – without clause 14 would not otherwise be unlawful.  It is clause 14 that makes it unlawful and the fact that the orders tried to suppress an unlawful process, which is what we say in paragraph 14 of our outline, which has of course never been the case of the University. 

The University has never got up and said if we are wrong about this and we have imposed an unlawful process and everything we have done in 2016 and 2017 and indeed through to 2018 to try to suppress what – everything we have done was unlawful because it was a contravention of clause 14, we are not going to submit that nevertheless the confidentiality directions were lawful.  They never said that, and I very much doubt that my learned friend would get instructions to say that.  Indeed, I doubt he would seek instructions.

KIEFEL CJ:   Well, there was of course the finding by the majority in the Full Court which I think is the subject of your second ground of appeal.

MR WOOD:   Yes, your Honour.

KIEFEL CJ:   But perhaps it might be convenient to come back to that after our break.

MR WOOD:   Thank you, your Honour.

AT 11.14 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.31 AM:

KIEFEL CJ:   Yes, Mr Wood.

MR WOOD:   Thank you, your Honour.  Before the break, we were dealing with paragraphs 13 through 16 of the outline, and we had made the point that the confidentiality directions were bad for two reasons.  One is that they attempted, in the future, to detract from the clause 14 right to express disagreement, express opinions, and they were also bad because they attempted to cover up, if we are right about our construction of clause 14, what was an unlawful process.  That is not to say that in a different case there could have been more narrow confidentiality directions that were given that would be lawful and did not fall foul of clause 14.

The alternative ground, so‑called, and you will recall - perhaps three of the coram will recall that at special leave our learned friend said that the construction point was determinative of the appeal, but ‑ ‑ ‑ 

KIEFEL CJ:   Well, is that correct, given that the majority in the Full Court appear to have found on – made a finding on the alternative basis?

MR WOOD:   They do, your Honour, and our learned friends now say you should look at that alternative basis.

KIEFEL CJ:   It is paragraph – the second ground, paragraph 3 of your notice of appeal actually puts it in issue, as you must, for this appeal.

MR WOOD:   That is right.  Yes, your Honour.  It is clear that the alternative ground is affected by the misconstruction, as we have set out in our submissions at paragraphs 130 through 136 of the Full Court’s reasons on this ground at pages 173 to 175 of the appeal book, although purporting to deal with this issue as an alternative ground, the Full Court said – the majority, I should say, said at 130:

The primary judge erred in holding that, in each case the subject of the findings by JCU, Professor Ridd had been exercising a right under cl 14, which right could be breached by JCU in bringing disciplinary proceedings or issuing directions.

In 133 on page 174, the Full Court say:

In any event, JCU did not discipline him on that basis.

That is a:

failure to act in a manner consistent with the protection and promotion of intellectual freedom –

It:

was concerned about the correlative duty Professor Ridd owed to his colleagues, and also to those academics associated with the institutions he criticised.

KIEFEL CJ:   We do not have the actual ground of appeal that their Honours are dealing with, but looking at paragraphs 133 to 136, I take it that it was an attempt by the University to challenge whether or not Professor Ridd actually came within clause 14 ‑ ‑ ‑ 

MR WOOD:   That is correct, your Honour.

KIEFEL CJ:   ‑ ‑ ‑ in that his conduct was an exercise of intellectual freedom.

MR WOOD:   That is quite right, and in so ‑ ‑ ‑ 

KIEFEL CJ:   Which some might think was the first question to be asked in relation to clause 14.

MR WOOD:   Well, that was our point from the beginning, your Honour.  Then at 134, the Full Court say:

Similarly, the Enterprise Agreement does not ground a claim against JCU for breach of cl 14 in circumstances where it does not create an obligation or a duty on the part of JCU.

Then at 135 and 136 the Full Court say:

It is also clear that some of the elements –

not identifying which:

of Professor Ridd’s conduct are unable to be characterised as an exercise of intellectual freedom in the sense described in cl 14, being no more than expressions of personal opinion –

Well, opinion is one of the things protected by clause 14, properly construed:

and frustration –

It is no defence to the exercise of the right under clause 14 to say that the academic cannot say it because he or she is frustrated, and then:

general criticism of JCU –

which is of the type allowed under clause 14.2:

or the university sector –

again, allowed under 14.2:

more broadly (not particular disagreement with University decisions or processes) -

which is, of course, when one looks at the emails, completely incorrect.  The examples of the so‑called some elements of the conduct:

include the emails to students the subject of the Third, Fourth, Sixth, Seventh, Eight, Twelfth, Thirteenth, Fifteenth and Sixteenth Findings.

The third finding was an email to a colleague, fourth was an email to fellow teachers, the sixth and seventh and eighth were emails to students, 12th was five publications to the public at large, the 13th was three publications to the public at large, the 15th was documents on a website, and the 16th was an email to a supervisor.  I mean, these were not, apart from three of them, emails to students.  One only has to look at – if you look at any one of them ‑ ‑ ‑ 

GORDON J:   We do not have some of them.

MR WOOD:   But they are all ‑ ‑ ‑ 

GORDON J:   We have extracts in the judgments of some of them, but not all of them.  We have partial extracts only, I think, of at least the 12th and so on.

MR WOOD:   That is true, your Honour, but there is enough in the extracts in the – we could provide them to the Court, but there is enough in the extracts, in the primary judge’s finding, for the 12th, 13th, 15th and 16th findings, to show clearly that these were an exercise of the right to criticise and comment upon, express opinions about the operations of JCU.  If I could take you to the 12th, which is found at page 61, starts on page 60, the 12th finding.  This is in 2018 now, the ninth, 10th, 11th, 12th, 13th through to 17th findings are all conduct after the final censure of 21 November 2017, and it was said that these five things damaged the reputation of the University, in breach of the code of conduct.  On the top of page 61:

·my name is Peter Ridd and I am a professor of physics at James Cook University and I’m facing serious repercussions for supporting scientific integrity

·I have now been issued a final censure by James Cook University to talking about quality assurance in science and told to remain silent

In the WordPress website, published in late January of 2018, talking about what happened to him in 2016:

JCU had already found him guilty of academic misconduct and censured him.  In that case he had exposed a very famous piece of science, which claimed massive damage to ensure reefs –

to insure reefs, that should say:

to be wrong and questioned the quality assurance systems used in GBR science –

Then, in an article in The Australian, Professor Ridd said that he wanted to:

“draw attention to the quality assurance problems in science and the obligation of universities in general to genuinely foster debate, argument and the clash of ideas”

“I think it is right to challenge our sites –

That should say “science”:

institutions about whether their work is reliable and trustworthy –

The fourth one:

“This is as much a case about free speech as it is about quality of science,” –

and in the flyer he sent to – he handed around the University in late January 2018 he said:

[Ridd] got into trouble after making a comment on TV saying that[he] did not believe that the science coming from two of our science organisations was trustworthy and was given a final censure and told to remain quiet about the matter.

Now, that is not an email to a student and on the proper construction of clause 14.2 and 14.4 it on any view contravenes clause 14 as is found at paragraph 196 by the primary judge:

Professor Ridd was expressing an opinion about the operations of JCU.  He was also expressing disagreement with the decisions of the University and with the processes used to make those decisions.

Apart from this very rolled‑up way in paragraph 135 of the Full Court, which of course that conclusion was based on a misconstruction of clause 14, none of the findings apart from in that rolled‑up way of the primary judge are challenged, and if you turn over to page 136 – it is paragraph 136 of the Full Court’s reasons at page 175 of the court book:

Professor Ridd’s conduct subsequent to the Final Censure, and on which his termination was grounded, had nothing to do with the exercise of intellectual freedom pursuant to cl 14.

Now, on no view can that be based on the alternative construction, having regard to the subject matter of the ninth through to the 17th findings.  You will see in 137 similarly that the misconstruction comes back that:

the Confidentiality Directions issued by JCU was an infringement of Professor’s Ridd future exercise of intellectual freedom properly so characterised –

that is, by the Full Court.  Your Honours, we could go through each of the findings on the basis of the correspondence set out in the primary judge but on any view of those findings – and perhaps the eighth finding is the only one in which there is any real doubt – but on any view, one to seven and nine to 17 are all exercises of the right to intellectual freedom properly construed.  There was no alternative ground or is no alternative ground to support the orders of the Full Court, and the 15th and 17th findings are not even dealt with.

KIEFEL CJ:   Mr Wood, could you assist me with the relief that is sought in the notice of appeal?

MR WOOD:   Yes, your Honour.

KIEFEL CJ:   I have a little difficulty following paragraph 6c.  Is this still the relief that is being sought?

MR WOOD:   Yes, your Honour.

KIEFEL CJ:   Paragraph 6c and d?

MR WOOD:   Yes, what happened was that there was a judgment by - two orders of the primary judge, one where he found that each of the 17 findings were unlawful contravention of the clause 14 rights.  The primary judge then made another order where he imposed penalties and compensation later.  The appeal by the appellant to the Full Court appealed eventually both sets of orders and was successful in reducing the level of compensation and the penalty that was imposed by the primary judge, and we do not

appeal from the reduction in the compensation or the reduction in the penalty, and in relation to 6(c), that is just a question of calculation which we could provide to the Court.

KIEFEL CJ:   Thank you.

MR WOOD:   Unless there are any further questions, I might deal with anything else in reply.

KIEFEL CJ:   Yes, thank you, Mr Wood.

MR WOOD:   Thank you, your Honour.

KIEFEL CJ:   Yes, Mr Walker.

MR WALKER:   May it please your Honours.  The question of construction, as it has been called, is a question that appears to underlie the whole of the case against us in this Court, even, as I shall later explain, the matters of so‑called alternative grounds for the Full Court’s determination, particularly with respect to confidentiality directions.

The key to the beginning of the construction exercise is to recognise, as my friend has fairly put it, that the enterprise agreement is a federal instrument given statutory force for the rights and obligations contained in it by section 50 of the Act in a way that puts to one side what I will call privity.  So you get rights under it and you are subject to obligations under it, notwithstanding you were not a party to its making.

The University, being bound by it by dint of provisions that are not controversial in their application, is a university incorporated under State legislation and subject to State statutory obligations to have and abide by a code of conduct, so that the code of conduct has a dual character in the junctures at which it is found in the enterprise agreement.

The first is, of course, that it is a document that is referred to in the ways with which your Honours are familiar in the enterprise agreement itself, and the enterprise agreement says things about the code of conduct, that is, the content of the rights and obligations, the aspirations and the encouragement that you find in the various different registers of language in the code of conduct itself.

But the second aspect, of course, of the code of conduct is that it is the result of the observance of a State legislative requirement, which is a matter of law.  Now, those threads are pulled together in ways that we are about to embark upon, as our outline suggests, by going to the individual provisions, in particular in the enterprise agreement, upon which the argument has focused.

But, at the outset we draw to attention, probably calling in aid the same general judicial statements about the proper approach to interpreting an enterprise agreement as our friends, that language is used in the enterprise agreement – and it is certainly used in the code of conduct – in a way that does not always yield an immediate, for example, Hohfeldian analysis of so-called rights – that is things that are called “rights” – and does not always come neatly packaged with what might be called straightforward modes of enforcement for infringement of so‑called rights.

Nonetheless, as the courts below – and in particular the majority in the Full Court did – the judiciary has to do the best it can with such material, giving it substantive force for the fundamentally important social adjustment of rights and obligations in workplaces.

Against that background we would say, by way of an answer on our part to some of the questions that your Honours have addressed to our learned friend, that one of the more obvious rights of co‑workers – that is other members of staff apart from Professor Ridd - at James Cook University is to have the protections afforded to them by the enterprise agreement – including by reference to the code of conduct – given substance by enforcement on the part of the University.

Of course, when it comes to something called intellectual freedom, whether or not it is cognate or partially congruent with so‑called academic freedom – a phrase that you find in parts of the code of conduct – whatever one may say about that it is not a matter which is only as between employer and employee – that is the legal entity of the University – I use that expression to distinguish from the community of a university – and members of staff – academic staff, presumably.  That is an important aspect of it, no doubt.

But it is obviously enough – as perhaps the expression “the community of the university” would indicate anyhow – that as between members of staff – co‑workers – there are protections where it is not a matter of a university administration aggressively asserting prohibitions, for example, against a single member of staff – it may well be a member or members of staff raising grievances about the conduct infringing their rights and interests by another member of staff, calling for the University – presumably by a disciplinary exercise, as occurred in this case – so to speak to hold the ring – to be the broker – to be the adjudicator.

In our submission, whatever else one might say about the notion of respecting the rights of others, when the expression is found within an enterprise agreement which gives rights and which rights plainly extend to the manner in which members of staff relate to each other, that one simply cannot put to one side code of conduct standards as informative of the content of the rights of others that one finds right at the heart of the matter in clause 14.3 of the enterprise agreement.

But we have jumped ahead a bit so as to anticipate by supplying an answer to some of the questions your Honours asked my friend.  Could we start with 14.1 about which, with respect, neither the written argument nor my friend’s address is particularly explicit or explanatory as to why it should not bear the natural, completely unstrained meaning that the majority in the Full Court gave it.

There must be some significance, bearing in mind, as it were, the programmatic nature of clause 14 as a whole, in the fact that it starts with a statement of commitment by the University, an expression which echoes a similar expression found in 13.2 and which, of course, in substance reflects the whole of the linguistic stance you will see in the code of conduct itself where the first person is used to describe the assemblage of the University as a legal entity and its staff as well as, of course, in the older and broader sense “the community of the University”.

So there is a commitment, and it is a commitment “to act in a manner consistent with” matters which the parties before the Court today are agreed are significant for the nature and spirit of a university.  What they are not, however, are words which can to any degree of security in an instrument such as an enterprise agreement provide without recourse to other text the content of rights and obligations in such a way as one could seriously imagine them to be enforceable and enforced in disciplinary process.

GAGELER J:   Is clause 14.1 an operative provision or is it a preamble to what follows?

MR WALKER:   It partakes of both those characters but it is certainly operative, that is, the commitment of the University:

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 ‑

is a commitment that pervades all other parts of clause 14.

EDELMAN J:   But it is expressed at a high level of generality ‑ ‑ ‑

MR WALKER:   Exactly.

EDELMAN J:   ‑ ‑ ‑ which does not purport to resolve how to deal with conflicts between ‑ ‑ ‑

MR WALKER:   Quite so, quite so.  That is my point.  It starts off by referring to acting:

in a manner consistent with the protection and promotion of –

and then it just says:

intellectual freedom within the University –

So you are going to have to go somewhere else to find the stuff of rights and obligations in the case of dispute between staff members to be ruled on, say, in disciplinary processes by the University administration concerning what is required of a commitment:

to act in a manner consistent with the protection and promotion of intellectual freedom ‑ ‑ ‑

GAGELER J:   When you get to the last clause:

in accordance with JCU’s Code of Conduct -

do you also have to go elsewhere to find out what that means, perhaps back to 13.3?

MR WALKER:   You absolutely have to do that, yes.  When you do so, you have, as part and parcel of that, the interpretative provision in 13.3, and that is at the heart of the matter, we submit, on the so‑called construction issue.  Now, it is because one notes the, if you like, preambular nature, in part, but also the express commitment in an industrial instrument so the employer is committed to act in a way employees can require, have a right, to have that commitment honoured.  Surely the parties before the Court today are furiously agreed on that, because if there is one thing that Professor Ridd insists on, in, we think, every aspect of his argument, it is that the University is not free to act otherwise than:

in a manner consistent with the protection and promotion of intellectual freedom within the University –

Not free, for example, says Professor Ridd, when it comes to questions of disciplinary process, where allegations of misconduct or serious misconduct and sanctions such as termination, not to mention censure, may be in question, so that 14.1 cannot be, and certainly is not, by Professor Ridd’s argument, relegated, relegated to some merely‑aspirational but completely non‑obligatory character.  Of course, it cannot be inconsistently treated.  It is all the components of 14.1 that have to have that substantive effect given in the context of this industrial instrument.

The commitment in 14.1 to, if you will forgive the shorthand, protect and promote intellectual freedom in accordance with the code of conduct, is not, on the face of the code of conduct, at all an alien notion, not an inconsistent notion, not a contradictory notion, because on the face of the language of the code of conduct, including the so‑called explanatory statement, which the code of conduct says must be read in conjunction with it, you will look in vain for anything that, in terms, is tending against the exercise of intellectual freedom.

Now, it is true that the freedom referred to in 14.1, and repeated in 14.2, is a freedom which, on our argument – upheld in the Full Court, and obviously acted upon by the University administration – does not constitute a complete liberty to act as one chooses, subject only to the conceited standards of honesty, on the one hand, in relation to opinions, and the collocation of what I might call non‑existent rights that one sees in 14.3 – to which I will be coming, “harassment”, “vilification”, “bullying” and “intimidation” – of those who disagree.

In our submission, it is in the nature of learned communities – if one must go back to the highly unreliable notion of a medieval foundation that is going back to an era where the church’s doctrine could not be contradicted within the university – if you must do that, at least one would get, for modern purposes, the notion that there are manners and forms of exercising intellectual freedom which do not detract from it as a freedom, and which can easily be seen, even if one might have a different view – can easily be seen as being themselves proposed and promoted as means of permitting the the freedom to be exercisable as widely as possible – not just by those with the loudest voices, but by everyone.

A moment’s thought – if one has to draw upon the highly dubious and variable historical and cultural forebears of current intellectual freedom within James Cook University – if you must draw upon it, then other forms of free speech and uninhibited communication come to mind as being at the one and same time properly described as freely practised – freely exercised – but within the limits prescribed by the institutions in questions.  What I am doing at the moment is an example of that, so that the Court does not prevent me from putting my submissions but there are limits – not merely of decorum – as to how that should be done.

The forum in which, for high constitutional purposes, free speech is most obviously and explicitly recognised, namely the Houses of Parliament, obviously have their own self‑regulating requirements for the manner of that speech – that manner of that freedom being exercised.

In short, one can dismiss as lacking any cultural or historical or analogical support the notion that the intellectual freedom, including the expression of opinion – which is a particular of it in 14.2 – is one which, by definition, must not be subject to any requirement as to manner of exercise.

Of course, the code of conduct is redolent with a concern for the manner of exercise, amongst other things, amongst many other things, of rights to express opinions which will clash.  It is for those reasons, in our submission, that at the core of the difference between the parties here today, seems to be Professor Ridd’s argument that it is definitionally, indeed, self‑evidently, according to my friend, a detraction from a freedom that there be any regulation of the mode of it being exercised.  That is neither true of any other freedoms one can contemplate, nor is it required by what might be called a literal understanding of the language.

So when one comes to 14.2, there is a non‑exhaustive list of so‑called rights, and one sees the switch from a language of freedom to the language of rights, whether it is precisely, jurisprudentially, entirely beyond criticism, that usage, it is the usage in the document, and it is important because it posits that every member of staff will have rights, and as we would submit, not merely as against the University, but as against each other, just as you would expect in the case of a text, namely, 14, including its 14.3, where one sees the so‑called not‑existent rights.

So, harassment, vilification, bullying, and intimidation classically describe misconduct by one member of staff against another.  It may also involve misconduct by administration, that is, the employer against an employee, but the more usual case, that which surely is sufficient to justify the outlawing of such conduct, is conduct as between co‑workers.

GAGELER J:   On this construction, clause 13.3 is simply superfluous, is it?

MR WALKER:   No, not at all.  The operation of 13.3 is, as I say, interpretative.  Your Honours have not been shown, or told about, any provisions of the code of conduct which, as a matter of text, properly understood within the code of conduct, contradicts, is inconsistent with, would undermine, et cetera, that is, detract from, the intellectual freedom talked about in 14.

EDELMAN J:   Well, the core of the argument really is principle 3, is it not, and particularly under principle 3, respect and courtesy and having regard to the dignity of others?

MR WALKER:   Yes, and what I was about to say, all you have been told is that the stipulation for the manner of, in particular, communication, that the University has held falls foul of those standards promulgated in the code of conduct is, in itself, because it promulgates standards, something that detracts from intellectual freedom.

In our submission, that is an argument that must utterly depend upon the notion that any stipulation for the manner of exercise of a freedom is a detraction from the freedom, and as a general proposition that cannot be right.  It might in particular cases.  So, purported regulation of form such as that you may not address criticisms of research to anybody holding a rank higher than associate professor, that obviously would be going far beyond form and would contradict intellectual freedom, in particular the pursuit of “critical and open inquiry”, the first dot point of 14.2.  Nothing so crass is in question in this case.

In our submission, returning to Justice Gageler’s question, 13.3 is a way of emphasising ‑ and it is itself an interpretative provision, not as it were executive in its language ‑ what 13.3 does is to ensure that there cannot be by any process of interpretation of the code of conduct anything which would prevent intellectual freedom in accordance with clause 14 being practised.

KIEFEL CJ:   You call it an interpretative provision.  Is 13.3 also in the nature of a direction as to what is to be contained in the code of conduct?

MR WALKER:   No, that is because as we read 13, in our submission, it is speaking of a document ‑ ‑ ‑

KIEFEL CJ:   Something which is complete ‑ ‑ ‑

MR WALKER:   ‑ ‑ ‑ that already exists.

KIEFEL CJ:   Yes, it is complete.

MR WALKER:   Now, that does not mean it is timeless, I should say, because of 13.1.  But 13.3, we submit, is a form of words chosen to describe what the parties to the EA wanted noted about something which does exist, a text of which they were – see the opening words of the first line of clause 13 – endorsing, or supporting, as they put it there.  So they are looking at that text and they are saying, we support this.

They are noting in 13.3 that – using the language, whether naively or otherwise, that captures the notion of interpretation, that is, seeking to divine intention, they are saying it is not intended to detract from clause 14.  It is a little odd, as the Full Court has observed, because the parties referred to in 13.3 are the parties to the EA, which is not exactly congruent with the participants in the State legislative process of making a code of conduct.

But, be that as it may, we know that participants, important participants, in the making of the code of conduct, and certainly those responsible for its ultimate promulgation, are among those that could be regarded as parties to the enterprise agreement.  One can see that this is intended to be a note for anyone interpreting anything in the code of conduct in light of the existence of clause 14.

EDELMAN J:   So at one extreme would you accept then in Justice Rangiah’s example that an honest allegation of academic fraud against a colleague is something that could never be done respectfully?

MR WALKER:   No, I do not accept that at all.  Anyone who practises criminal law has in mind an indictment.  It is utterly inappropriate discourse to say that an indictment which alleges terrible things against a person, that it is disrespectful, that it is discourteous, et cetera.  We submit that that comment by his Honour in paragraph 264 in the core appeal book 207 is just wrong and applies language to forms of utterance which can have no footing. 

It is simply not sensible and one hopes for the sake of the proper conduct in particular of criminal proceedings and out‑of‑court disciplinary proceedings, it is not proper at all to posit that saying that someone has done something wrong or has done something that warrants their termination is something which by dint of that content makes the speaker disrespectful of the person or discourteous of the person, that it is simply not true as a matter of ordinary experience in criminal courts and in disciplinary process. 

They can and should and, according to the code of conduct, must in this University be conducted courteously, respectfully, no doubt informed appropriately by what in disciplinary processes would be the equivalent of an accusatorial principle, et cetera. 

KIEFEL CJ:   But perhaps lawyers operating within the confines of a court system are inured with the obligation.  They know how to respond in language which in both tone and choice of words overcomes the problems that you are referring to.

MR WALKER:   Yes, but not significantly so as to cast up a difference here.  The first point is, well, that is one of the purposes of having a code of conduct.  If it is not an instinct professionally instilled, then it is something which is written down and staff members are required ‑ ‑ ‑

KIEFEL CJ:   It is hard to think of a workplace that does not have one, that requires respectful behaviour.

MR WALKER:   To which our answer is good - that is a good thing, not a bad thing.

KIEFEL CJ:   Court has an unwritten one.

MR WALKER:   All the more powerful for not being written.

EDELMAN J:   Even if, say, in relation to the Sky interview, even if that were characterised at the highest level, let us say as involving an allegation of fraud, there has not been any investigation and the case was not run at trial on the basis that one needs to consider whether this was respectful or disrespectful brought.

MR WALKER:   That brings us to a matter that explains perhaps the curious or special framing of the issues in this Court and your Honours will have seen it remarked upon by all members of the Full Court below.  By the time of the final hearing, or at least the final phases of the final hearing at first instance and consistently thereafter, that is, throughout the whole of the proceedings in the Full Court below, the position taken by Professor Ridd was that his contentions rested on the construction issue, so‑called, about clause 14 and he did not contest that but for that construction contention. 

The University was entitled to regard his conduct as falling short of the standards required by the code of conduct and, indeed, in at least sufficient to justify in the Blyth sense dismissal, there had been serious misconduct within the meaning of the enterprise agreement.  So that the so‑called simplification, as it was self‑announced on behalf of Professor Ridd of the issues in the case, produced, no doubt, the desired outcome at first instance, that clause 14 was the whole of the reasons for his success because the argument said, this conduct, which I Professor Ridd accept the University could regard, and, on appeal, could have regarded, as falling short of code of conduct standards and otherwise satisfying the grounds for termination could not do so because, and because only, of the construction argument that said the code of conduct cannot impose those standards infringed in the way you have particularised because I was in every one of those cases protected by clause 14.

KIEFEL CJ:   Would it not be put against you that the reason Professor Ridd took that position was that the findings, the directions and the censures were all based only upon the code of conduct to the exclusion of clause 14, and if clause 14 had been in the forefront of the mind of the University, they might have asked themselves the threshold question, namely, whether or not what Professor Ridd did was in pursuit of an intellectual freedom. 

MR WALKER:   The short answer is yes.  It could be so put and has been so put.  Is it correct?  No, because as a matter of fact, there was a considerable conflict, contest between Professor Ridd and the administration during the disciplinary processes about whether he was being disciplined for exercising his clause 14 freedom.  It was explicitly raised, and the University said no in particularised episodes, you have expressed your opinions and we are not seeking to discipline you for that all. 

In other words, it is not true that the University did not consider clause 14.  It is true that they did not consider that the particularised allegations against Professor Ridd of failing to abide by the standards set down by the code of conduct were matters that were, to use Professor Ridd’s approach, protected by clause 14, in other words the code of conduct could not be read so as to extend to apply those standards in a manner so that they could be infringed by what he did and said because what he did and said, including its manner was wholly protected against the imposition and enforcement of such standards by reason of the nature of the freedom, the language of 14.2, 14.3, and in particular the interpretative requirement with respect to the code of conduct set out in 13.3.

Now, it is in that fashion that it is correct, with respect, that everything comes down to the construction of clause 14.  More accurately, or more elaborately, one could say it is the interpretation of the enterprise agreement.  There are at least three provisions, rather than just 14, but it does have at its centre the significance of the statements in clause 14 about the exercise of the so‑called intellectual freedom. 

What we seek to get, as the Full Court got below, out of 14.1, is that the parties to the EA, and thus everybody, like Professor Ridd, subject to it, both able to obtain its protection and subject to its enforcement against them, the parties in 14.1 made it as clear as words could make it that the code of conduct was not to be understood as being a set of standards at odds with intellectual freedom, that is because the commitment in 14.1 to something as important as the protection and promotion of intellectual freedom was positively stipulated to be in accordance with the code of conduct.

Unless you started by assuming your conclusion, namely, that the most rebarbative and offensive statements short of vilification, in the purported exercise of intellectual freedom, could not be controlled by codes of conduct, which would be an extraordinary thing to say about any learned community, let alone a modern university, unless you assumed that conclusion, then the parties to the EA and those who are protected and bound by it can see in the language of 14.1 that the code of conduct is to be seen and used as a means, an instrument, for the expression, including by people who disagree with each other, of intellectual freedom.

EDELMAN J:   Why would it be so extreme to interpret it to allow statements to be made as extremely as the speaker wishes, provided that the statement does not harass, vilify, bully, intimidate, or otherwise contravene the law of the land, including defame the reputation of another and so on?

MR WALKER:   When one adds the last part, your Honour, it is the language in 14.3:

a responsibility to respect the rights of others –

We accept, as I heard, and I think our friend accepts, that the law of defamation, which, importantly, for utterances that might be imagined would include the law of qualified privilege, ought to be understood as providing a standard for the conduct by which one exercises that part of intellectual freedom, which involves the expression of unpopular or controversial views.  That is the first step. 

The second step is that the rights of others include, of course, as no doubt Professor Ridd would himself insist, the rights granted to employees of the University under the enterprise agreement.  They are enforceable legal rights, for breach of which section 50 provides sanction.  Those rights include here the rights that come under clause 13, which describes the code of conduct as establishing:

the standard by which staff and volunteers conduct themselves towards others –

and that there is a right to have the administration – by which I mean what is called JCU in the enterprise agreement, 13.2 – to ensure through the code of conduct that staff behave with respect for others.

Now, it is by that means, in our submission, that the collegial standard of conduct, explicitly promulgated by the code of conduct, is by no means any contradiction, but rather the manifestation of the exercise, within a university – it is not meant to be a brawl - of an intellectual freedom in accordance with the code of conduct.  It does not stop very confronting propositions being advanced, and it will not stop the expression of honest opinion, but it will regulate the manner in which that is carried out, so as, as it were, not to privilege only the speaker – so as to ensure that the object, or subject, of the speech is himself or herself also respected.

Otherwise freedom – intellectual freedom, within either the academy – if it is talking about academic freedom – or within the community – if you are talking about the intellectual freedom – for all staff – not just academic staff – would of course simply be a contest to be decided by the volume or extremity of voices, which has absolutely no purposive footing at all ‑ ‑ ‑

GAGELER J:   Your distinction between the right and the manner of the exercise of the right becomes a bit blurred, does it not, when you look at the terms of clause 14.3?

MR WALKER:   Pardon, I did not catch the last bit.

GAGELER J:   It becomes blurred when you look to 14.3.

MR WALKER:   No, but I do have to deal with that, yes.  I was going to come immediately just then to the last words of 14.3, apropos my last proposition.  That sentence refers to “These rights”.  As we read that, it certainly includes the so-called rights to express unpopular or controversial views, but we would submit, not least because of the use of the plural, that it also includes the rights of others.  Those are the only rights that are referred to.  The rest are of course non‑existent rights.  So:

These rights are linked to the responsibilities of staff –

It imposes responsibility.  It does not just provide licence – or immunity:

to support JCU as a place of independent learning and thought where ideas may be put forward and opinion expressed freely.

What we are submitting is that, far from being blurred, 14.3, which starts with the declaration of a:

right to express unpopular or controversial views -

is starting with a reference to what might be called conflict – politely contest but could easily become conflict – and the notion of disagreement is explicitly captured in the next sentence.

Those are states of affairs which may well advance the search for truth, but may well, singly, materially, destroy the amenity of a workplace, depending upon manner and depending upon, for example, resort to proper processes, to which I will be coming to a moment, in 14.4.  So that, far from blurring, what 14.3 emphasises is that there are other people, not just the speaker of the unpopular or controversial views, there are people who may disagree with those views, and the notion of ideas being put forward and opinion expressed freely includes being able to do so collegially, a word explicitly used in the code of conduct.

What was not in contest, ultimately, at first instance, and ever in the Full Court, was that the University, in this case, was entitled to find and to consider - to consider and find that Professor Ridd’s conduct had fallen short of those standards identified, as Justice Edelman has, they seem to be at the heart of the matter.  That is why, in our submission, one asks what it is in 14.1, surely nothing, and what it is in 13.3, and we submit, nothing, for the reasons I have tried to elaborate, which poses the code of conduct as standing against the exercise of intellectual freedom with which clause 14 is concerned.

It would only be if one were to find in the code of conduct, which one might find, there are a lot of words and a lot of epithets, and a lot of highly arguable statements, of – I should not say “highly arguable”, a lot of language which would no doubt give rise to argument about whether it applied or not to a particular episode.

EDELMAN J:   Does that not then mean, given the vague terms which are sometimes used in the code of conduct, that if this interpretive approach were applied to clauses 13 and 14, it would have a chilling effect on the pursuit of critical and open inquiry or the participation in public debate and expression of opinions about issues and ideas related to fields of competence?

MR WALKER:   With respect, the metaphor of “chilling effect” may well be a proper one, although it may only introduce another level of rhetorical doubt.  One person’s “chilling” may be another person’s “appropriate restraint”.  It seems to be accepted – I am sorry, I will start again.  There is, of course, the plain statement that there is no “right to harass, vilify, bully or intimidate”, which is one way of saying this intellectual freedom does not extend so as to provide a licence for harassment, vilification, bullying or intimidation. 

To take, of those four, vilify, it is particularly easy to see how statements, vehement statements denouncing corrupt or incompetent academic work of a colleague might be regarded as vilification, certainly by that colleague, if he or she did not share the views advanced.  So that it is plain from the text of 14, particularly 14.3, that there are limits, including of manner, to this exercise of the intellectual freedom which is not anywhere in clause 14 itself prescriptively expounded so as to understand its substantive qualities in any detail.

But that does not stand alone as the clear and textual delineation of a limit to what can be done and, more to the point, said or written in exercise of intellectual freedom because the disagreement, some might say discord, that comes from disagreement and which may involve the expression on one side or the other of unpopular or controversial views, or perhaps in the University both sides have unpopular or controversial views, but because of the significance of independent learning and thought where the putting forward – to use the language of 14.3 – of ideas is to be fostered, where opinion is to be expressed freely – in other words, not discouraged – then the mode of the expression of disagreement, the mode of the expression of views which might be unpopular or controversial, naturally lend themselves to being a fit subject matter for a code of conduct, providing for standards of behaviour in advancing unpopular or controversial views with which others may disagree, those others also being persons whose putting forward of ideas and free expression of opinions are just as much the object of protection as the speaker in question.

That is why, in our submission, the failure at any stage in the proceedings below or here to identify anything beyond respect, courtesy, et cetera, in the code of conduct as presenting a contradiction with the exercise of intellectual freedom is a weakness in the argument against us.  One does have to condescend to show text in the code of conduct, query in its so‑called explanatory statement as well, which is on one reading at odds with the protection and promotion of intellectual freedom. 

The only ones that have been done are the ones that have already been talked about and we know that those are ones which involve the rights of other members of staff to have the code of conduct enforced, and the code of conduct we know is part and parcel of the protection and promotion of intellectual freedom.  So, unless and until we find words that 13.3 would affect or, perhaps more accurately, an extreme interpretation of such words then, in our submission, there is no detraction demonstrated in this case at all.

GAGELER J:   Mr Walker, were the findings of the breach of the code in all cases findings of breach of principle 3, or did it go beyond that?

MR WALKER:   I do not think I should say yes universally, but I can say – and I will have that checked – but I think I can say as to the bulk of them, yes.

GORDON J:   Is that right?  I thought a number of them were principle 2 dealing with integrity and good reputation, especially the second finding which was the finding arising out of – I withdraw that – the third finding at least arising out of the email to the colleagues.

MR WALKER:   That is one of the reasons why I say I cannot say it is respect, et cetera, for all of them.  Could I as to the reputation of the university say this?

GORDON J:   Sorry, there is one point – especially in relation to the second finding which was one of the critical findings, there was also a breach of principle 1, I think, as well.

MR WALKER:   Your Honour, I am bound to say that there is, to put it mildly, a degree of overlap.  If you go to 162, principle 1, the fourth dot item says that:

In our conduct, we will:

. . . 

·value academic freedom, and enquire, examine, criticise and challenge in the collegial and academic spirit of the search for knowledge, understanding and truth -

That has an obvious overlap with, in the same principle, the dot item at the top of page 163 which is having – I do not quite understand the syntax:

In our conduct, we will:

. . . 

·have the right to freedom of expression, provided that our speech is lawful and respects the rights of others –

and that, of course, drives one off to find out what the relevant rights of others may be.  In principle 2, just below line 40 there is a requirement to:

·behave in a way that upholds the integrity and good reputation of the University ‑

and then there is the second‑last dot item there, a “conflict of interest” point.  Then principle 3, we have – and this is still with – sorry, not principle 3.  Principle 2 still, at the top of page 164, there is a compliance:

with any lawful and reasonable direction –

Your Honours can see what I referred to earlier as the mixture of linguistic registers in these documents.  If you compare just that one with the next one, for example, it is a bit of a jumble and there is overlap.  Could I draw to attention, with respect to reputation, for the point I was about to make, the third last of the dot items in principle 2 is to:

·disclose wrongdoing and protect those who make a disclosure ‑

Principle 3, which obviously is speaking to subject matter that has already been dealt with in principles 1 and 2, because it refers to “respect for others”, starts by noting its so‑called alignment with the first principle, and then speaks in terms in the first dot item that are, more or less, unmistakable in their attempt to apply a standard.

It is not to the point that somebody, either in their personal conduct generally, or at work, regards that as a standard which is inappropriately old fashioned and redolent of a requirement for civility with which one might disagree, politically or socially – that is not the point.  The code of conduct for this workplace requires that as a standard.

This case is an argument that says that clause 14, by its reference to intellectual freedom to be promoted and protected in accordance with the code of conduct, has the effect of removing that obvious standard of behaviour – the beginning of principle 3 – from the possibility of applying, as soon as one is expressing one’s own opinion, and, in our submission, there is nothing to suggest that intellectual freedom is capable, sensibly, of being understood, of its nature, to repel the application of any standards to do with manner, such as respect for others.

I wanted to draw to attention, again, because I am coming back to the question of reputation, to principle 3, the third‑last dot item on page 164.  There is a reference there to investigation of complaints.  The next one is not accepting “unwelcome, discriminatory, intimidatory or abusive” behaviours.  Similarly, with respect to “vilification, bullying, harassment or sexual harassment”.  Then, finally in this argument, at the top of 165 one sees that there is a principle, a standard promulgated to “stand up for the rights of others”.  So, there is obviously conflict and contest possible there as well. 

Now, our point is this, that all of these bespeak the need for the community of the University in their conduct vis-à-vis each other to observe standards, notwithstanding or perhaps even because the subject matter of their dealings will from time to time amount to disagreement or conflict. 

In our submission, there is – it is not possible sensibly to argue that to recognise that state of affairs and to seek, therefore, to regulate the manner in which disagreement or conflict is expressed, manifesting intellectual freedom by its expression is thereby to be regarded as a detraction from the intellectual freedom.

Could I come back then to what finally I wanted to say about the reputation point?  Now, there is an example that has not been argued in this case that one might imagine where the code requirement concerning the reputation of the University has to be read alongside those other provisions I have just listed which would require standing up for the rights of others, exposing wrongdoing, et cetera, et cetera, and would have to be read as meaning, of course we do not mean that you are to protect the short‑lived and undeserved reputation of a university where there has never been any sexual harassment complaint because if somebody has been sexually harassed and has a right not to be then members of staff have to do something about it upon proper disclosure of which, of course, that undeserved and one hopes short‑lived reputation will be damaged. 

But on a proper and purposive understanding of this high‑minded set of texts, it must be understood that the reputation that is protected by the code of conduct is a reputation that will not include undeserved reputations or, to put it another way, it is the long‑term reputation for acting properly, correcting mistakes as the code of conduct requires.  That is the object of the protective provisions, not the short‑term reputation that comes with it not being disclosed that which has actually occurred. 

Now, had there been an argument of that kind concerning the reputational aspect of the code of conduct then one can readily see how 13.3 would be the neat way of saying but, of course, reputation does not mean an undeserved reputation because that is found in a document that requires wrongdoing to be exposed and vindicated.  But that kind of exercise has not been essayed in relation to the respect for others and collegial manner which is at the heart of the falling short of standards for which Professor Ridd was repeatedly censured and then finally dismissed.  Is that a convenient time, your Honour?

KIEFEL CJ:   Yes, thank you, Mr Walker.  The Court will adjourn until 2.15.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

KIEFEL CJ:   Yes, Mr Walker.

MR WALKER:   May it please the Court.  Returning, if I may, to conclude what I want to say about clause 14 of the enterprise agreement, I have already noted that the rights to express unpopular or controversial views and the rights of others that are to be respected are said, expressly, in 14.3, to be:

linked to the responsibilities –

as it is called:

of staff to support JCU as a place of independent learning and thought where ideas may be put forward and opinion expressed freely.

The last thing I wanted to say about 14.3 was that the notion of opinion being expressed freely and ideas being put forward is, obviously, a matter of mutuality between the interlocutors in a debate, that is, it cuts both ways.  In 14.4, another potentially conflictual position is addressed, all still, perhaps a little oddly, under the heading of intellectual freedom.  It is, I suppose, in a most literal sense, an intellectual freedom to express disagreement with anybody about anything.

Clause 14.4, as the Full Court noted, is obviously a term that is not confined to academic staff or academic freedom.  “University decisions” may be decisions, for example, about strategies or employment.  The processes used to make those decisions may involve disciplinary matters, query whether the second sentence of 14.4 applies to disciplinary matters, it is perhaps general enough to do so.  There are, as your Honours know, other provisions dealing specifically with disciplinary matters, to which I am about to come.

But what we do seek to obtain from this in support of the approach taken by the administration during the disciplinary process was that there are means of raising things to which of course confidentiality is an important aspect.  The merits of the position taken concerning what I will call the confidentiality complaints again was only challenged insofar as it was said they were foreclosed by the proper understanding of clause 14, meaning that there could not be confidentiality or a requirement to go only through applicable processes imposed without in some way infringing clause 14.  This is not a code point, so this is not 13.3, and it runs up against the problem that 14.4 is in 14, “Intellectual Freedom”, and requires processes to be gone through.  I will come back to that.

The Full Court dealt with 14.5, 14.6 and 14.7 briskly because they do not in terms tell one much more about intellectual freedom.  Clause 14.5 is aspirational, though expressed in mandatory terms.  Clause 14.6 and 14.7 really have as their main burden the expression of prohibition on various modes of expression, in particular claiming the aegis of the University or an identification of the University with one’s own opinion.

So, taken as a whole, 14 is, in our submission, a provision which quite plainly speaks of and to all members of the university community who are bound by and entitled to the benefits of the enterprise agreement and bespeaks significantly in the manner that we have tried to argue in writing and in my address of the way in which the code of conduct is a means by which that freedom will fall best to be exercised in the collegial fashion that a university surely requires.

We then need to go to the separate provisions, which are not in any sense either argued to be or capable of being understood as being subject to clause 14 “Intellectual Freedom”.  Now, I do not mean by that that clause 54, starting on page 84 of the further materials, presents any contradiction between it and what is implied by it, and clause 14 and what is implied by it. 

One could be forgiven for thinking, however, that a deal of the argument concerning confidentiality, either with respect to a common law power to give lawful directions, or a specific requirement under clause 54, has been pitched to your Honours as an exercise which involves, in some fashion, inconsistency with intellectual freedom.

It seems to involve the notion that one or more of the dot items in 14.2 in particular, query the first sentence of 14.3, does away with the proper or appropriate regulation of the disclosure of, for example, ongoing disciplinary matters, such as was in question in this case.  That, in our submission, is something that finds no footing in the text whatever. 

In clause 54, your Honours see, as it were, some channels being selected, 54.1.2, 54.1.3, some very general ideals being espoused, as one would hope in 54.1.1, some connection with what might be called the outside world of law enforcement in 54.1.4, and then 54.1.5, which was in question in these proceedings. 

The position that the Full Court came to, that does not appear, really, to be challenged in this Court, is that 54.1.5 starts with an explicit statement of the confidentiality of the process, that is, your Honours should not, in our submission, find that 54.1.5 has the curious and lopsided inefficacious outcome that the University administration is bound by confidentiality but no one else – or, but not the person against whom a complaint has been made.

It is to be understood that in relation to misconduct and serious misconduct processes there will be informants – sometimes perhaps called complainants – one knows of another professor, in this case – and thus, the notion of confidentiality for all information gathered and recorded is – and emphatically is not confined only to information peculiarly pertaining to the person against whom the processes have been put in train – in this case, Professor Ridd – there are others involved as well.

The fractured syntax and layout of the (a), (b), (c), (d) paragraphs in 54.1.5 have been sufficiently discussed in the Full Court – I do not need to dwell on it – but their meaning is tolerably plain.  One can leave aside (a) and (b); (c) appears, we think, by our friends to be the subject of a proffered reading that Professor Ridd could waive – that is remove or dispense with – obligations of confidentiality unilaterally.  It, of course, ignores the fact that he is not the only person to whom confidential information relates with respect to a process covered by the opening words of 54.1.5.

That was – and still is, in our submission, for the reasons properly put by the Full Court – ground for the findings of serious misconduct where were made.  There is, with respect, only – given the way the issues have been presented below and here, there really is only the question whether there is an interpretation of clause 14 which would prevent his conceded conduct rendering Professor Ridd liable to the disciplinary outcomes which he suffered as a result of the publications and disclosures that were found against him by the administration. 

Now, as I have said, this is not a 13.3 notion of comparing a code with clause 14.  There is nothing in the text of clause 14 and clause 54, which sets up anything equivalent to 13.3 in that regard.  In our submission, the special, specific subject matter of clause 54 regulating processes which may include disputes about whether, for example, someone has abused, or not, his or her intellectual freedom under clause 14, it can readily be seen that the process of confidentiality, status of confidentiality, cannot possibly depend upon clause 14 being engaged or not in favour of somebody against whom a complaint has been made. 

The complaint may well allege there has been an abuse of intellectual freedom and may well be answered by the person against whom the complaint is levelled, to the effect that the conduct was all entirely justified and protected under clause 14.  The dispute about that will be the subject matter of the disciplinary process and that process will be the subject of the stipulated confidentiality, and thereafter, of course, as in this case, could be the subject of lawful directions during that process as to non‑disclosure and confidentiality.

It is, in our submission, absurd to say that confidentiality either does not exist until the end of the process designed to be protected by the confidentiality – that is ridiculous – or that it retrospectively disappears upon the culmination of the dispute process in vindication of the person against whom a complaint has been made in reliance upon clause 14 protection.

EDELMAN J:   Did the respondent argue before the primary judge that the termination could be justified solely by reference to those contraventions that concerned breaches of clause 54?

MR WALKER:   There was reliance upon what I will call the several availability of all of the findings in accordance with common law principle, so that I do not think one will find an argument where the word “solely” is used, but entailed in the argument we put was that any one of the serious misconduct findings – any one of the serious misconduct findings suffice to justify dismissal.

Now, that last, in particular, is all I really need to say about the new‑found argument about what I will call an accumulation, which really reverses the common law and says if you take one bit out of something which was in the Tribunal below upheld as a whole then you have destroyed the basis of the Tribunal below and, accordingly, there must either be something in the nature of a remitter or goodness knows what.  That, in our submission, is contrary to common law and common sense and is certainly contrary to the way in which it was put by us.

So, nowhere does one find the notion that unless each and every one of the counts was upheld, that is, all of them together, then there was no serious misconduct on the basis of which dismissal could be justified.

GORDON J:   At the same time we have no findings either.

MR WALKER:   I am so sorry, your Honour?

GORDON J:   At the same time, both in the termination notice and at first instance, we have the analysis you have just put to us, that one could somehow pick up the confidentiality directions as the separate findings and give rise to serious misconduct, giving rise to the right to terminate.

MR WALKER:   They are all put individually.

GORDON J:   I will put the matter differently.

MR WALKER:   I am sorry.

GORDON J:   I accept that they are put individually, but as a cumulative subset the termination notice identifies, at least as I read it on page 205 of the applicant’s further materials, a reliance as justification for termination of what is described as a pattern of conduct.

MR WALKER:   Yes.

GORDON J:   Which picks up not only the directions but also, as I understand it, the matters the subject of the first censure and the final censure.

MR WALKER:   Yes to all of that, your Honour.  I have in mind, in particular, on that very page about line 52:

Your conduct, individually and collectively –

So when I was using the words the word “several” I had in mind that at every point, including from when it was first done, the proposition was put that each of these conclusions of serious misconduct was individually available.  So that individually:

destructive of the trust and confidence ‑ ‑ ‑

GORDON J:   I understand that to be - to follow.  I had not understood that that was to – I thought that the first sentence was dealing with the basis of termination.  Am I misreading that?

MR WALKER:   No, that is why I said yes to your Honour’s earlier point.  There are a lot of words in this letter.  There are a lot of words in the other letters as well.  But on this page in the culmination of the expression of the outcome, together with its reasons, one can see that at the core of the rationale for dismissal, that is, conduct destructive of the trust and confidence necessary, et cetera, bearing in mind that there had been outright defiance of directions, one finds the letter expressing by a fairly familiar phrase, that is, “individually and collectively”, the double‑barrelled notion that it is both the aggregate and each of the items constituting the aggregate which is said to be destructive of the trust and confidence. 

It is for those reasons that, although you will not find, as I say, anywhere a singling out, say, of the confidentiality directions as a sole ground, if that is all there was, logically that is what the University was saying.

Your Honours will recall there was no challenge - apart from that confined to the interpretation of clause 14 as providing an immunity - there was no challenge to the finding – the conclusion of serious misconduct.  Those merits were withdrawn by the end of the first instance hearing and never present during the Full Court appeal.

The way in which my learned friend put it today was that the confidentiality directions were not capable of being supported on the alternative so‑called common law approach, that is, otherwise than pursuant to clause 54, contrary to the way the Full Court had upheld our argument in that regard because, simply put by our friend, by reason of clause 14 they were unlawful directions. 

That, in our submission, is wrong for the following reasons.  Those were directions concerning information regarding the disciplinary process - the staff, true, regulated by clause 54.  But for a clause 14 argument of the kind attempted by Professor Ridd, there can be no doubt that there could be lawful directions, more or less specific as the occasion would appear to justify, by which the University administration could give directions both permitting and prohibiting or qualifying the disclosure of materials. 

Familiarly, that might be by redaction of complainants’ names, for example, or identifying features.  So they are in no doubt about the general lawfulness of directions regulating access to material which the enterprise agreement said would be confidential, and I stress that is during the process.

Once one rejects the notion that if the process involves consideration of clause 14 as vindication of the conduct complained against, then there can be no confidentiality for that process, once one rejects that notion, you are left with the common or garden proposition that, whatever the complaint be about, against whom, and whether or not that person raises clause 14 in their defence, or in vindication of their conduct, the process remains a process about which there can be a lawful direction of confidentiality. 

It is for those reasons, in our submission, that there simply is no construction argument about clause 14 available to attack the sufficient ground for dismissal which was defiance of lawful directions as to confidentiality.  To put it another way, it does not contravene, as my friend put it, clause 14, to require a complaint in which clause 14’s possible application is in question, to be subject to the usual confidentiality regime. 

There was reference concerning the effect of a federal instrument and the possibility, as one knows from section 26 of the Act, or, if one must, 109 of the Constitution, of it prevailing over a State instrument.  It is of some importance to note that that has never been an issue or an argument in this case.  This has been a matter of interpretive reconciliation or not,

seen through the lens of 13.3 and the terms and effect in context of clause 14 itself.  May it please your Honours.

KIEFEL CJ:   Thank you, Mr Walker.  Anything in reply, Mr Wood?

MR WOOD:   Some short points, if it pleases the Court.  In relation to the confidentiality argument that my learned friend has just made, he says that the confidentiality directions all related – and these are his words – to “ongoing disciplinary matters”.  No, they did not.  They related to the attempt to suppress what had occurred, that is the fact of a first censure, the fact of a final censure, the fact of a charge in both the 2016 and 2017 processes.

If there had not been a more narrowly drawn confidentiality direction, then it might not have run up against clause 14 in the two ways that we have indicated.  Moreover, there was in the process nothing confidential.  Professor Ridd was charged with three things.  First, an email that he sent to a journalist; second, part transcript of a TV interview; third, 25 of his own emails.  There is nothing confidential in there for those directions to relate to, even if the direction had not been more narrowly cast, which it was not.

It was never argued that the breach of confidentiality directions by themselves – in answer to Justice Edelman’s question – would constitute serious misconduct.  There was no finding below that they would constitute serious misconduct and the reason for that was it was all or nothing for the University.  They said we have the test right, you have it wrong, the code of conduct is the thing that governs everything, and clause 14 has nothing to do with it.

EDELMAN J:   It was all or nothing for your client as well.

MR WOOD:   Of course, of course – both ways.  But if we are correct in terms of our construction of clause 14 then the directions go too far because they contravene the clause 14 rights and they also attempt to suppress – and are thereby unlawful – communication, publication of an unlawful process.  I said before the break, my learned friend will not get instructions to make that argument; he has not made that argument, and rightly so because if we are right in our construction of clause 14, and if those confidentiality directions did attempt to suppress what was an unlawful process, then, of course, they cannot be held to be lawful. 

Dealing with the substantive point of construction our learned friend says, well, clause 14 is just to do with substance but the code is to do with manner.  That is a very unstable dichotomy as the facts of this case make out and as Justice Gageler said, it is somewhat blurred by clause 14.3.  But you recall I took the Court before the break – before lunch – to what the University said on this very point in relation to substance and manner. 

That is in relation to the punishment for speaking out on TV.  When the University said irrespective of whether you genuinely believe these comments to be true or said them in a calm manner, that contravened the code.  The lived experience of this case consistently with the construction indicated by 14.3 is not suggestive that there is any stable dichotomy between substance and manner. 

Secondly, our learned friend says - and he said you cannot limit clause 14 to a mere requirement not to harass, vilify, bully or intimidate.  It might be that it goes further and puts another limit along the lines that Justice Edelman suggested that you cannot infringe legal rights.  My learned friend said but it does, in fact, pick up the code, that phrase “rights of others”. 

That idea of picking up the code was available to the makers and they did not include it in clause 14.  They could have picked up the code very easily but the problem is you lose something when you acquire collegiality or respect or courtesy or reputation - reputational risk to be the touchstone of behaviour in this forum, not least because it is in the eye of the beholder and it is an entirely explicable choice for the makers of this agreement to set the mark of the limits upon the speech at the level they have.

If they had wanted to introduce through the phrase “rights of others” the full gamut of the code, they could have said so.  The construction my learned friend advances makes the restrictions in clause 14.3 redundant, and indeed makes the whole of clause 14 redundant.  What is the point?  The whole point of clause 14 was to be a hole in the doughnut.  The code was a standard that imposed obligations.  Clause 14 was a freedom.  If you make that freedom subject to the code, the freedom goes away.

In our submissions we refer to the fact on that point, that there is a limit that one must choose, and we refer to a recent book of Professor Stone and Vice‑Chancellor Evans where they say, really picking up what my learned friend said - he said ideally – this is what the authors say:

Ideally, such discussion would be respectful, but civility should not be mandated.  Passionate advocacy and strong critique can be all too easily mistaken for incivility – especially, perhaps, when the ideas being expressed are challenging and unorthodox.  Evidence and reasoning are the touchstones of academic discourse, civility is not.

That is the reason the makers of the agreement pitched the limits in the way they did.  To do otherwise, to pick up Justice Edelman’s question, creates the chilling effect.  If you are confronted by a code of conduct which says that you have to be respectful, you have to be courteous, you have to uphold the reputation of the University, you have to respect the rights of others, then that limits, in the mind of the academic, the extent to which they feel free to express the challenging idea.  That is why those phrases were not chosen and that is why the limits that were put in clause 14.3 were put in there.

In answer to your question, Chief Justice, my learned friend said clause 14 was considered by the University – it was not, in this whole process.  The point was made by the appellant that clause 14 was the touchstone by which his conduct should measure ‑ ‑ ‑

KIEFEL CJ:   I thought there were a number of statements in the correspondence which said this was not about intellectual freedom, so that might imply that some consideration had been given.

MR WOOD:   In a sense – in the sense that they just said whatever – whatever right you have it is subject to or in accordance with the code of conduct.  We are not interested in clause 14.  That is why there is no finding, below, in terms of the University’s findings, that touches upon clause 14.  It was simply irrelevant for the University.  That is why in this proceeding, before the primary judge, we had to plead and prove that it was an honest opinion – which was done, no cross‑examination – we had to prove, through mountains of evidence, Professor Ridd’s expertise and his areas of interest.

Those matters were not the subject of any finding by the University.  The University was not interested in whether this was honest opinion or whether there were opinions within Professor Ridd’s expertise.  It just was not relevant.  The only relevance for them was the code of conduct.

I am not sure I answered Justice Gordon’s question before lunch sufficiently.  All the findings are set out in the primary judge’s reasons when coupled with the letters.  Unless there is anything further.

KIEFEL CJ:   Yes, thank you, Mr Wood.  The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for pronouncement of orders and otherwise to 9.45 am.

AT 2.49 PM THE MATTER WAS ADJOURNED