FEDERAL CIRCUIT COURT OF AUSTRALIA
| RIDD v JAMES COOK UNIVERSITY | [2019] FCCA 997 |
| Catchwords: INDUSTRIAL LAW – Enterprise Agreement – Code of Conduct – where Intellectual Freedom enshrined in Enterprise Agreement – where Code of Conduct inconsistent with Enterprise Agreement – primacy of Enterprise Agreement. |
| Legislation: Fair Work Act 2009 (Cth), s.50 James Cook University Act 1997 (Qld), s.5 |
| Applicant: | Peter Vincent Ridd |
| Respondent: | JameS Cook University |
| File Number: | BRG 1148 of 2017 |
| Judgment of: | Judge Vasta |
| Hearing dates: | 26, 27 and 28 March 2019 |
| Date of Last Submission: | 28 March 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 16 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr S. J Wood QC assisted by B. Jellis and B. Kidston |
| Solicitors for the Applicant: | Mahoneys |
| Counsel for the Respondent: | Mr C. J. Murdoch QC |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Court rules that the 17 findings made by the University, the two speech directions, the five confidentiality directions, the no satire direction, the censure and the final censure given by the University and the termination of employment of Professor Ridd by the University were all unlawful.
The issue of the making of declarations and penalty are adjourned to a date to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Brisbane |
BRG 1148 of 2017
| Peter Vincent Ridd |
Applicant
And
| JameS Cook University |
Respondent
REASONS FOR JUDGMENT
Introduction
Some have thought that this trial was about freedom of speech and intellectual freedom. Others have thought that this trial was about the manner in which academics should conduct themselves. Some observers may have thought that this trial was about the use of non-offensive words when promulgating scientific ideas. Media reports have considered that this trial was about silencing persons with controversial or unpopular views.
Though many of those issues were canvased and discussed throughout the hearing of this matter, this trial was about none of the above. Rather, this trial was purely and simply about the proper construction of a clause in an Enterprise Agreement. Whilst the Court acknowledges that there may be consequences that touch upon these other issues because of the Court’s construction of that clause, none of those consequences can play any part in the determination of the proper construction of that clause.
The clause in question is cl.14 of the James Cook University Enterprise Agreement. It is headed “Intellectual Freedom”. It, and it alone, is the focus of this judgement.
Even though in this application, the Applicant is asking for the Court to make declarations that the Respondent breached the Enterprise Agreement and therefore contravened s.50 of the Fair Work Act 2009 (Cth) (“the FW Act”), the parties have asked me to simply rule whether certain findings and directions were lawful.
If I find that they are lawful, that will be the end of the litigation. If I find that they are unlawful, I will give the parties the opportunity to make submissions about declarations and penalty.
The Concept of Intellectual Freedom
Intellectual freedom is…
Keep reading for free
Create a free CaseChat account to read Ridd v James Cook University and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2019] FCCA 997
- Decision Date
CaseChat Overview and Summary
Professor Peter Ridd, a physicist at James Cook University, was dismissed by the University following the dissemination of an email he sent to a journalist. The email, sent on 16 December 2015, expressed concerns about the alleged misuse of scientific data and photographs by scientific institutions, including the Great Barrier Reef Marine Park Authority, to support claims of significant damage to the Great Barrier Reef. The University alleged that Professor Ridd's email breached its Code of Conduct, specifically provisions relating to the responsible conduct of research and the respectful treatment of colleagues. Professor Ridd contended that his email was protected by the intellectual freedom clause within the University's Enterprise Agreement.
The central legal issue before the court was whether Professor Ridd's conduct, as evidenced by his email, constituted a breach of the University's Code of Conduct, and if so, whether the Code of Conduct, in its application to Professor Ridd's actions, was inconsistent with the intellectual freedom provisions of the Enterprise Agreement. The court was required to determine the relative legal weight of the Enterprise Agreement and the Code of Conduct, and whether the University had acted within its rights in dismissing Professor Ridd based on the content of his email.
Vasta J found that the Enterprise Agreement, which enshrined the principle of intellectual freedom for academic staff, prevailed over the University's Code of Conduct. His Honour reasoned that the Code of Conduct, in its application to Professor Ridd's email, imposed restrictions on his academic freedom that were not permitted by the Enterprise Agreement. The court held that Professor Ridd's email, which questioned scientific data and methodologies, fell within the scope of intellectual freedom and did not constitute a breach of the Code of Conduct as interpreted in a manner consistent with the Enterprise Agreement.
The court ordered that Professor Ridd's dismissal by James Cook University was unlawful.
The central legal issue before the court was whether Professor Ridd's conduct, as evidenced by his email, constituted a breach of the University's Code of Conduct, and if so, whether the Code of Conduct, in its application to Professor Ridd's actions, was inconsistent with the intellectual freedom provisions of the Enterprise Agreement. The court was required to determine the relative legal weight of the Enterprise Agreement and the Code of Conduct, and whether the University had acted within its rights in dismissing Professor Ridd based on the content of his email.
Vasta J found that the Enterprise Agreement, which enshrined the principle of intellectual freedom for academic staff, prevailed over the University's Code of Conduct. His Honour reasoned that the Code of Conduct, in its application to Professor Ridd's email, imposed restrictions on his academic freedom that were not permitted by the Enterprise Agreement. The court held that Professor Ridd's email, which questioned scientific data and methodologies, fell within the scope of intellectual freedom and did not constitute a breach of the Code of Conduct as interpreted in a manner consistent with the Enterprise Agreement.
The court ordered that Professor Ridd's dismissal by James Cook University was unlawful.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The email from Professor Ridd to Peter Michael was sent on 16 December 2015 at 9:19 AM. I reproduce it in full below with the concerning aspects underlined.Subject: FW: Great barrier Reef pictorial deceptionDear Peter,I wonder if you would be interested in some work we have done recently which indicates that GBRMPA is grossly misusing some scientific “data” to make the case that the Great barrier (sic) Reef is greatly damaged. It relates to the supposed decline of the Great Barrier Reef and some famous photographs of an inshore reef, one from the late 1800’s showing a beautiful reef and a more recent picture supposedly at the same location showing no reef at all. The conclusion is that this reef has been destroyed by sediment and nutrients coming from the land and is representative of many other inshore reefs. The pictures are found right across the internet and in many scientific documents. They are used extensively by conservation organisation.The attachment document shows pictures we have just taken of the area where the supposedly dead reef is located – and the coral is brilliant. The document explains how these pictures have been misused and that there is a wider issue of lack of quality assurance of much of this “public good” science.If it helps I can condense the document to something much more manageable (to op-ed length perhaps) but I thought I’d leave it quite long for the moment so that you can see the story in its entirety. I think the pictures tell the story by themselves, but the story would benefit greatly from a response from GBRMPA and people from the Canegrowers organisations (such as Peter Sheedy, Herbert Canegrowers, Ingham or the like)CheersPeterProfessor of Physics, Peter RiddMarine Geophysics LaboratoryHead of Intelligent Systems, Information and ModellingCollege of Science Technology and EngineeringJames Cook University, 1 James Cook DriveTownsville QLD 4811 AUSTRALIAATTACHED DOCUMENTIt is interesting to consider the very famous photographs below (figure 1) which are plastered across the internet which supposedly shows an example of how the Great Barrier Reef (GBR) has been damaged. The photo on the left shows a reef in the late 19th century and the right photographs supposedly shows the same reef today. These photos are also found in the Great Barrier Reef Marine Park Authority’s GBR Outlook Report 2014 which states that “Historical Photographs of inshore coral reefs have been especially powerful in illustrating changes over time, and that the change illustrated is typical of many inshore reefs” (see appendix B).I have always been highly sceptical of these photographs as the commonly used reason to explain that this reef has been killed is due to increased sediment runoff since European settlement. My own work has shown that this explanation is virtually impossible especially for locations such as this. In addition it does not take account of the fact that these inshore reefs can change dramatically with time especially with the passage of cyclones which can temporarily obliterate them. Ten years after a cyclone they may have fully recovered.The presentation of the photographs also gives us the impression that we know where the original 100 year old picture was taken. In fact we can only guess within a kilometre or two, and in this area it would not be unusual to find great coral in one spot and nothing a kilometre away (see appendix A). The selection of the position of where the modern photo was taken can thus decide what message we see. Finally, seeing dead reef does not necessarily mean that it died recently. In fact there are literally hundreds of square kilometres of dead reef-flat on the GBR which was killed due to the slow sea level fall of about a meter that has occurred over the last 5000 years. This has left a lot of coral high and dry at low tide which kills the coral. It is easy to take a picture of a dead reef, but it does not mean it died recently. A month or so ago I decided to see if there was good coral in the area that these pictures were taken so I asked a couple of my field technicians to take some photographs in the area with the same island backdrop as the two original pictures (figure 2 and 3). You will note that there is spectacular coral living there – at least in many spots within the area that the original photos were taken.The questionable pictures were originally published by David Wachenfeld and the paper describing them can be found here ( (go to page 142). It should be noted that in this paper David Wachenfeld cautions that“from the results of the Historical Photographs Project so far, the number of locations that do not appear to have changed since the historical photographs were taken throws doubt on the proposition that the GBR is subject to broad scale decline, whatever the proposed cause.”So the original author said these pictures should not be used to demonstrate damage to the GBR and yet they pop up all the time in important documents such as the official Great Barrier Reef Marine Park Authority 2014 GBR Outlook Report (see Report-2014/index-33.html see page 17 of the report or Appendix B),In addition they are found in(a) Reports from our most august scientific institution working on reefs such as the Australian Research Council Centre of Excellence for Coral Reef Studies 2012 annual report: See page32 (see page 32)(b) in the quality mainstream media e.g an ABC website Splash%7CSecondary_email%7C20150311#!/media/1542275/reef-of-life (go to 20 second mark on video.(c) Or the web everywhere, for example as-it-did-50-years-ago/ (go to image 15), and w.php?p=Stoneisland1895Of course this is a relatively trivial, although visually spectacular, example of some of the bad science on the GBR. I can send you a document (an ARC grant application in fact) which talks about other more fundamental problems if you like. However returning to these pictures, they are actually a dramatic example of how scientific organisations are quite happy to spin a story for their own purposes, in this case to demonstrate that there is massive damage to the GBR. In fact any decent marine scientist or boat owner around Bowen, could have told you that there is lots of coral around Bowen and that it is spectacular. It was always a very unlikely proposition that this area had suddenly lost all its coral. GBRMPA, and the ARC Centre of Excellence should check their facts before they spin their story.Most importantly this raises the question of what quality assurance processes are in place for much of this “public good science”. My view is that there is almost no quality assurance. This is a huge problem. I can send you a short document on this issue in relation to the GBR.If you would like to do a story on this issue you would be welcome to use the photographs that we have taken. In addition I think it would be worthwhile asking the Head of GBRMPA and also the Head of the ARC Centre of Excellence the following.(a) How much confidence that they have in the veracity of the original photographs?(b) Would they expect that if you as a journalist went to this site, would you see good coral?(c) How sure are they that the sequence of pictures in their reports are in fact taken in the same location(d) Given that the original author cautioned against using these pictures to demonstrate “broad scale decline” of the GBR, why did their organisations use them to do exactly that?My guess is that they will both wiggle and squirm because they actually know that these pictures are likely to be telling a misleading story - and they will smell a trap. If they wiggle and squirm then the next two questions must be(e) If you are not sure about these pictures, why have they been included in your reports?And finally and most importantly(f) What quality assurance procedures do you have in place to make sure that your science is likely to be correct?They will talk about peer review but this is insufficient QA as this often only involves a quick read of the work by a couple of people who may well be ones friends. (I can send you more information on this as well if you are interested.)Prof Peter RiddJCUAppendix AThe 1890 picture was published in a book by Saville-Kent, see is Plate IX.Referring to the supposed Stone Island picture the original book does not say it is on Stone Island. It says, “The scene of this illustration is in close vicinity to that of the Madrepore islet that forms the subject of Plate V, No 1.” So what does Saville Kent say about plate V. “This exceedingly picturesque reef-view is typical of the coral growth that predominates over a large area in the vicinity of Stone Island.So we can say that the image (Plate IX) is in the vicinity of a large area in the vicinity of Stone Island. – not very precise. We certainly cannot be sure it is even on Stone Island.Appendix BExcerpt from Great Barrier Reef Marine park Authority GBR Outlook Report 2014 showing historicphotographs and implying they show decline of the GBR (see figure caption)
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.