FEDERAL COURT OF AUSTRALIA

University of Sydney v National Tertiary Education Industry Union [2024] FCAFC 57

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the Appellant to file a Further Amended Notice of Appeal in the form handed up on 16 August 2023.

2.    The appeal be allowed.

3.    Orders 1, 3, 5 and 7 made on 22 November 2022 and Orders 1 and 2 made on 5 June 2023 be set aside and in place thereof it be ordered that:

(a)    The Applicants’ application be dismissed.

4.    If any party wishes to seek an order as to costs:

(a)    that party is to file, within 7 days, written submissions on costs of no more than 5 pages together with any evidence on which it wishes to rely;

(b)    any other party may file, within a further 7 days, written submissions in response of no more than 5 pages together with any evidence on which it wishes to rely; and

(c)    the question of costs will be decided on the papers, unless the Court is of the view that an oral hearing is required.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J:

1    I have had the advantage of reading in draft the reasons of Kennett J. I gratefully adopt his Honour’s recitation of the facts and arguments and express my general and respectful agreement with his Honour’s reasons save for one matter. This is whether the Union parties discharged their onus of proof in relation to cl 317. I do not think that they did. This divergence from the reasons of Kennett J leads to a different outcome for the appeal to which I will return at the end of these reasons. I have adopted in these reasons the defined terms used by Kennett J.

2    In FCAFC 1, the Full Court held at [187]-[188] that cll 315-317 constituted a complete statement of the intellectual freedom provided for by the 2018 Agreement. I agree with Kennett J that one consequence of that interpretation is that cl 317 is not an exception or proviso to the intellectual freedom protected by cl 315 but rather an essential part of that freedom. It follows that, even if one considers the question of where the onus lay through the provisions of the 2018 Agreement, it was for the Union parties to prove that Dr Anderson’s various comments had complied with the highest ethical, professional and legal standards referred to in cl 317. Although initially disputed in written submissions, this proposition was accepted by Senior Counsel for the Union parties, Mr Walker SC, in oral argument: T60.22-27.

3    So understood, the Union parties’ case that Dr Anderson had exercised the intellectual freedom within cl 315 must be taken to have entailed the positive assertion that he had acted in accordance with the highest ethical, professional and legal standards referred to in cl 317: see FCAFC 1 at [154]. On remitter, the trial judge found that Dr Anderson’s various communications fell within the intellectual freedom in cl 315 but his Honour gave little attention to cl 317. By ground 1 of the appeal, it was alleged that this was because his Honour erroneously assumed that the onus lay upon the University parties to prove that Dr Anderson had failed to comply with some standard in cl 317. As extracted in Kennett J’s reasons, the trial judge had sought unsuccessfully to elicit from Senior Counsel for the University parties an identification of the standards with which Dr Anderson had failed to comply. In that circumstance, it is argued by the University that the trial judge gave little further thought to cl 317 since it appeared to his Honour to be a case advanced by the University parties which had, during the cut and thrust of closing submissions, come to nothing: see FCA 2 at [23], [30], [38], [49] and [53].

4    The Union parties submitted, first, that the University should not be allowed to raise the issue of onus on appeal having not done so before the primary judge; and second, that in any event there was no error in his Honour’s disposition of the cl 317 issue in relation to each of Dr Anderson’s comments. I will deal with each of these in turn.

5    On the first, neither party made any submissions to the trial judge about which of them bore the onus of proving Dr Anderson’s compliance with cl 317. As I have explained, the correct position was that the Union parties bore that onus. The question which then arises is whether the University should be permitted to raise the issue of onus where it failed to do so before the trial judge. Ordinarily, the answer to this question would be no: see, e.g., Water Board v Moustakas (1988) 180 CLR 491 at 497 per Mason CJ, Wilson, Brennan and Dawson JJ. However, the unusual and chequered history of this proceeding includes the fact that the first Full Court remitted the matter to the trial judge to be dealt with on the evidence as it stood so that neither party was afforded an opportunity to lead any further evidence: FCAFC 2 at order 3(b) and [12]. Thus, even if the University parties had submitted to the trial judge (as they should have) that the onus of proof in relation to cl 317 rested on the Union parties, that submission could not have been met by further evidence and the evidentiary position would have been precisely as it is now. The failure of the University parties to raise the onus of proof issue does not therefore cause the Union parties evidentiary prejudice.

6    Whilst there may be a costs prejudice to the Union parties inasmuch as this appeal may not have been necessary had the onus point been raised at the remitted trial, this is not self-evident. In particular, regardless of the result of the remitted trial, an appeal by one or both sets of parties was likely. This is not a case therefore where the failure of a party to raise a point is likely to have resulted in the prolongation of litigation. Given the belligerent attitudes of these parties, the combustible subject matter of their dispute and the grinding manner in which the litigation has been conducted, it is unlikely that there are any savings which have been lost by reason of the University parties’ failure to raise the question of onus at the remitted trial.

7    In my view, therefore, it is open to the University to raise the question of the onus of proof on appeal and, like Kennett J, I would uphold its submissions about where that onus lay.

8    Mr Walker’s second submission was that there was no error in the primary judge’s approach to cl 317 and that his Honour’s disposition of the issue must be understood in the context of the joinder of issue between the parties or lack thereof given the University parties’ failure to identify standards with which Dr Anderson had failed to comply. This submission took as its point of departure the Full Court’s observations in FCAFC 1 at [128] (‘as a matter of forensic logic, the [Union parties] having pleaded exercise of the right in accordance with cl 315, it was for the [University parties] to plead that any such exercise had to [be in] accordance with cl 317’) and [198] (‘The [Union parties] were entitled to…plead an exercise of the right in accordance with cl 315 and leave it to the University [parties] to rely on cl 317…[and] were also entitled to allege (as they did), in response to the University [parties’] case, that the exercise of the rights did in fact satisfy cl 317.’). The corollary of these observations was said by the Union parties to be that it was for the University parties to identify the standards contemplated by cl 317 and the manner in which Dr Anderson’s comments transgressed them. The Union parties submit that even if they bore the onus of proof in relation to cl 317, it was still necessary for the University parties to identify the standards from which it was said that Dr Anderson had impermissibly departed. As I have already noted, at the remitted trial the primary judge asked Senior Counsel for the University parties to identify the standards relied upon in relation to cl 317 and Senior Counsel did not identify any such standard. Since the University parties never identified a standard with which they alleged Dr Anderson failed to comply, it follows on this view that whilst the Union Parties bore the onus under cl 317, that onus had no content where the University failed to identify a standard and was therefore discharged by the Union Parties doing nothing.

9    One apparent advantage of this conclusion is that it gives cl 317 a procedurally fair operation. If the University parties had in mind making an ultimate submission that Dr Anderson had failed to comply with, for example, an obscure code of conduct for university lecturers, it might be somewhat unfair for them not to have forewarned the Union parties prior to the close of the evidence that they were going to make such a submission. In particular, keeping their tinder dry in this fashion might deny the Union parties a fair opportunity to meet the argument by leading evidence about it.

10    On the other hand, it would be curious if a party bearing the onus of proof is not obliged to do anything to discharge that onus until such time as the party not bearing the onus points out what the first party needs to prove. In this case, if correct, that view leads to the unusual outcome that the party bearing the onus discharges it without proving anything.

11    With some hesitation, I have respectfully come to the view that I do not agree with Kennett J on this aspect of the appeal. This is for two reasons. First, whilst I see the force of the procedural fairness point, ultimately I have come to the view that it is not sound. If the University parties had raised in their closing submission some legal or ethical standard with which, without notice to the Union parties, it was now alleged that Dr Anderson had not complied, this would be procedurally unfair. However, in that event, the solution would be to grant the Union parties the right to re-open their case to deal with the point. Although the Full Court had remitted the matter to the trial judge to be dealt with on the evidence already adduced I do not think that the Union parties could have been shut out from leading evidence if the University had, in its closing submissions, identified a standard with which it was said Dr Anderson had not complied.

12    Secondly, cl 317 is part of the total statement of the intellectual freedom erected and protected by cll 315-317. Whilst it may be accepted in principle that issues in dispute in civil litigation must be considered in light of the joinder of issue between parties, that proposition does not detract from the fact that a party bearing an onus must present a case which enables the Court to feel actual persuasion of the relevant fact. Here it was for the Union parties to prove that the conduct of Dr Anderson was in accordance with the highest ethical, professional and legal standards referred to in cl 317. I would respectfully observe that concluding that this burden has no content unless the opposing party first identifies a standard is apt to sap the salience of this burden. No doubt the intellectual freedom referred to in cl 315 is a fine and proper thing but it is cut from the same cloth as the notions of academic responsibility in cl 317. Those who would drape themselves in the former cannot avoid the garb of the latter. In this case, this was not an issue which skulked in the blurry littoral of the freedom. Rather, when all is said and done, the fact is that Dr Anderson had juxtaposed a Nazi swastika with the flag of the State of Israel.

13    Dr Anderson advanced in this Court a series of engaging observations designed to demonstrate that not every use of the Nazi swastika is necessarily outside the notions of academic responsibility referred to in cl 317. For example, in a history course about the rise of the Nazis in Germany it would be difficult to see that the symbol could be avoided.

14    However, thought experiments of this kind needed to be brought down to the realities of this litigation. Having waded into the briar patch which is the situation in Palestine it was Dr Anderson who juxtaposed the Nazi swastika with the flag of the State of Israel. Accepting as I do that it may in an appropriate case be consistent with the standards referred to in cl 317 to use a Nazi swastika in the work of a university academic, it was for Dr Anderson to engage in the forensic gymnastics of explaining how his at least incendiary conduct could be characterised as being consistent with the highest ethical, professional and legal standards referred to in cl 317. This he did not do.

15    In my view and with respect, it follows that the primary judge misplaced the onus in relation to cl 317 on the University parties. It is tolerably clear from FCA 2 at [23], [30], [38], [49] and [53] that his Honour, having dispensed with the University parties’ ineffectual case in relation to cl 317, did not turn his mind to whether the Union parties’ case positively satisfied him that Dr Anderson’s comments met the highest ethical, professional and legal standards. If his Honour did so turn his mind and was so satisfied, I would accept that he did not provide adequate reasons in this regard as alleged in ground 3 of the appeal. On either view, the primary judge erred in his consideration of whether Dr Anderson’s comments constituted an exercise of the intellectual freedom.

16    Nothing said by the Full Court in FCAFC 1 at [128] and [198] is inconsistent with this conclusion. Their Honours were not considering there the question of where the onus of proof lay in relation to cl 317. And it does not follow from their observation that it was forensically logical in this case for the University parties to plead Dr Anderson’s non-compliance with the cl 317 standards that the University parties assumed any legal or evidentiary burden in relation to that issue.

17    The parties were ad idem that this Court should determine the outcome of the case rather than remit the case for yet another rehearing. Whilst I would ordinarily regard remitter as the appropriate order in this case, the tortured procedural history of the matter makes it appropriate for this Court to reach a view on what the correct outcome is.

18    The University submitted that Dr Anderson’s comments fell short of the highest ethical, professional and legal standards because they were variously intemperate ad hominem attacks, not in pursuit of academic excellence, and not in compliance with lawful and reasonable directions. It was said by Senior Counsel for the University, Mr Gleeson SC, that each of these arguments had been raised by the University parties in written submissions on remitter even if they were not developed in oral argument. In response, the Union parties argued that these points were effectively abandoned by the University parties at the remitted trial in the exchange between its Senior Counsel and the primary judge extracted in the reasons of Kennett J and that the University should not now be allowed to raise for the first time arguments which seek to give content to the cl 317 standards. In any event, the Union parties submitted, the University’s arguments did not suffice to take Dr Anderson’s comments outside the scope of cll 315-317.

19    As will shortly become apparent, it is unnecessary for me to resolve these issues. For present purposes, I am prepared to assume in the Union parties’ favour that these arguments were either not raised or abandoned by the University parties below and that this Court should disregard them.

20    On appeal, the Union parties did not point to a positive case run by them before the primary judge in relation to cl 317. A review of the written submissions and transcript of oral argument from the remitted trial reveals that the reason for this is that no such positive case was advanced because the Union parties were labouring under the misapprehension that it was the University parties which bore the onus of proving Dr Anderson’s non-compliance with cl 317. The Union parties did not address the cl 317 standards in their written submissions in chief on remitter, a fact which was pointed out by the University parties at [53] of their written submissions (‘The [Union parties’ submissions] do not address the application of the highest ethical, professional and legal standards under cl 317 (cl 256)’). That this was a deliberate forensic choice by the Union parties is made clear by [8]-[10] of their submissions in reply:

8.    As to paragraphs [37]-[41] of the [University parties’ submissions]:

(a)    the content of the “highest ethical, professional and legal standards” must be assessed by reference to the circumstances of any given case;

(b)    the identification of those standards cannot involve a process that impairs the right created by cl 315 (such as reliance on University policies that impair the right);

(c)    it falls to the [University parties] to identify the standards that it says should have been, but were not, complied with; and

(d)    the opinion of Professor Garton (see [University parties’ submissions] [45]-[46]) is irrelevant to the question of what standards apply, and the content of those standards.

9.    Forensically, the [University parties] have the burden of demonstrating that Dr Anderson failed to comply with cl 317. To discharge that burden, they must identify the relevant standards that apply by operation of cl 317 and explain how they have not been met. They have not done so. However it can be observed that:

(a)    the standards to which cl 317 refers must be connected to the exercise of intellectual freedom (so much follows from the wording of cl 317) and there must, therefore, be a direct connection between the relevant standard and the exercise of that freedom;

(b)    legal standards reflect the requirement to exercise intellectual freedom within the bounds of the law, as in force from time to time;

(c)    ethical standards reflect the bounds within which academics conduct their work and include, for example, the ethical standards set out in the terms of research grants;

(d)    professional standards are not a reference to general standards of civility but reflect the standards relating to the profession (such as evidence-based research, peer reviews, scholarly reviews, governance models and the like).

10.    The [University parties] have not identified with any precision the standards they say were applicable to Dr Anderson, nor how he failed to comply with them.

21    The Union parties therefore did not advance a positive case that sought to identify the standards applicable as a result of cl 317 and to demonstrate that Dr Anderson had complied with such standards. In those circumstances and given that the Union parties bore the onus in relation to cl 317, I cannot be satisfied that Dr Anderson’s comments met the highest ethical, professional and legal standards. This of course does not entail a positive finding that Dr Anderson’s comments did not meet those standards. Rather, given the paucity of evidence on this topic from at least the Union parties, I am unable to determine the issue one way or the other. It follows that I cannot be satisfied that Dr Anderson’s comments were exercises of the intellectual freedom enshrined in the 2013 Agreement and 2018 Agreement (as relevant). It also follows that I am not satisfied that Dr Anderson’s comments did not constitute misconduct or serious misconduct on the basis that they were exercises of the intellectual freedom.

22    The only question then remaining is whether it has been shown by the Union parties that Dr Anderson’s fifth comments did not constitute serious misconduct for some other reason such that his termination by the University was in breach of cl 384. For the reasons explained by the Full Court in FCAFC 1 at [220], equivalent questions do not arise in respect of the first and final warnings (and the comments to which they relate) because by the terms of cl 384(d) the taking of disciplinary action other than termination depends on the reasonable satisfaction of the University’s that the staff member had engaged in misconduct, rather than such misconduct having occurred in fact. It was not argued by the Union parties that Professor Garton was not reasonably satisfied that the first, second, third and fourth comments constituted misconduct: FCA 1 at [147]-[148].

23    The Union parties submitted on remitter that the fifth comments did not constitute serious misconduct even if, as I have found, it has not been demonstrated they were not an exercise of the intellectual freedom. This submission relied on the following dictum from Allsop CJ at [17] in FCAFC 1:

If it be the case that what has occurred can be characterised as the exercise or attempted exercise of the freedom or one of the rights, but one that was not in accordance with the standards required by cl 317, the question of any Misconduct would have to be assessed by reference to the failure to exercise the freedom or rights in accordance with the highest standards. The departure from those standards would be the conduct from which any judgment of Misconduct is to be made. The above enquiry should not be approached mechanically by concluding that the freedom or right in cl 315 was not validly exercised under cl 317 and so the conduct can be judged simply by reference to the Code of Conduct, ignoring otherwise cll 315 and 317. If the conduct is properly characterised as an exercise or attempted exercise of the freedom or right, but not at the highest standards, the vice of the conduct is in the departure from those standards, which may or may not be Misconduct, Serious or otherwise.

The Union parties argued that in making the fifth comments Dr Anderson was intending to exercise his intellectual freedom in accordance with the standards required by cll 315-317 and that any breach of those standards was not deliberate. Accordingly, it was said that the vice of Dr Anderson’s conduct did not rise to the level of serious misconduct and that the University’s power to terminate was not enlivened.

24    I do not accept this submission for three reasons. First, I do not read Allsop CJ’s remarks as intended to limit the assessment of misconduct or serious misconduct in cases such as these to the extent to which conduct has fallen below the cl 317 standards. Rather, that is but one factor in considering whether conduct constitutes misconduct or serious misconduct. Secondly, even if Allsop CJ’s remarks are to be read in that way, it is an essential premise of the Union parties’ submission that there be identified standards from which Dr Anderson’s departure can be assessed. As I have explained, no such standards were identified by the Union parties so it is not possible meaningfully to assess the extent to which the fifth comments have fallen below them. Thirdly, it must be brought to account that each of Dr Anderson’s comments have not been found to have been exercises of the intellectual freedom. The consequence of that conclusion is that the first and final warnings were properly issued by the University such that the second and fourth comments were made in breach of lawful directions. Considered in that light, the University’s submission that the fifth comments constituted repeated and deliberate defiance by Dr Anderson of lawful and reasonable directions is persuasive. For these reasons, I reject the submission that the fifth comments did not constitute serious misconduct. It follows that the Union parties’ attack on the termination of Dr Anderson’s employment must fail.

25    I would make the following orders:

(1)    Leave be granted to the Appellant to file a Further Amended Notice of Appeal in the form handed up on 16 August 2023.

(2)    The appeal be allowed.

(3)    Orders 1, 3, 5 and 7 made on 22 November 2022 and Orders 1 and 2 made on 5 June 2023 be set aside and in place thereof it be ordered that:

(a)    The Applicants’ application be dismissed.

(4)    If any party wishes to seek an order as to costs:

(a)    that party is to file, within 7 days, written submissions on costs of no more than 5 pages together with any evidence on which it wishes to rely;

(b)    any other party may file, within a further 7 days, written submissions in response of no more than 5 pages together with any evidence on which it wishes to rely; and

(c)    the question of costs will be decided on the papers, unless the Court is of the view that an oral hearing is required.

Associate:

Dated:    17 May 2024

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

26    I have had the benefit of reading the draft reasons of Perram J and Kennett J. I will adopt the defined terms in Kennett J’s judgment and gratefully adopt the outline of facts; the detailing of the procedural history (including the nature of the case advanced on remitter); and the description of the issues in the present appeal.

27    As would be evident from Kennett J’s reasons, this case has been a procedural mess. The lack of clarity in the pleadings and the submissions below has caused much confusion, and the primary judge did not receive the assistance his Honour was entitled to expect from the University parties below.

28    Subject to what follows, I generally agree with Kennett J but, to the extent I disagree, such disagreement is determinative. This is because I agree with Perram J’s conclusion, so far as it goes, that the Union parties failed to discharge their onus of proof. Accordingly, I agree that the appeal should succeed, and the orders proposed by Perram J ought to be made.

29    My reasons for reaching that conclusion follow.

30    In FCA 1, the primary judge dismissed the proceeding. In doing so, his Honour made the point (at [133]) that cl 315 contains requirements which must be satisfied before conduct could constitute the exercise of intellectual freedom and the clause contains what might be referred to as limitations. Hence the “right” is to engage in the “free and responsible pursuit of all aspects of knowledge and culture”. If the pursuit of knowledge in a particular case was not “responsible”, the pursuit would not fall within cl 315(a).

31    It followed, as the Full Court accepted, there are “in-built qualifications” (FCAFC 1 (at [256])) on the right of intellectual freedom imbedded in both cl 315 itself as well as within cl 317. This qualified right was the right that the Union parties, in their case in chief, were asserting was being exercised at relevant times by Dr Anderson. It necessarily followed that the Union parties bore the onus and hence were obliged to prove that Dr Anderson exercised the right of intellectual freedom in a way which was both “responsible” (cl 315), and in accordance with the “highest ethical, professional and legal standards” (cl 317): FCAFC 1 (at [7], [128] and [269]). This reflects the fact that the University only contravened s 50 of the FW Act if Dr Anderson’s exercise of the right, as a matter of objective fact, was in accordance with the in-built qualifications: FCAFC 1 (at [154] and [269]). This was the position irrespective as to what “forensic logic” or procedural fairness required by way of pleading to put the opposing party on notice of the real issues at the hearing: FCAFC 1 (at [182]).

32    As Kennett J has explained, the difficulty that arose in this case is that despite submitting in writing that Dr Anderson’s comments did not meet the necessary standard and the primary judge making it plain he would need each departure from the standard to be articulated and explained, the University parties below did not respond by engaging in this task. This placed the primary judge in an unenviable position, and while it rendered explicable why his Honour expressed himself in the way he did about the “failure to establish a breach by Dr Anderson”, it did have the effect, in my respectful opinion, of diverting attention away from considering whether the Union parties established that the third and fifth comments could possibly be characterised as constituting a responsible exercise of intellectual freedom in accordance with the highest ethical, professional and legal standards.

B    THE THIRD AND FIFTH COMMENTS IN CONTEXT

33    The full details are set out in Kennett J’s reasons, but it is worth outlining some important contextual facts relevant to the third and fifth comments.

34    The third comments involved the posting to a Facebook account of a PowerPoint presentation entitled “Reading Contemporary Controversies” at a seminar for the “Centre for Counter Hegemonic Studies”: FCA 1 (at [41]). One slide, with the heading “Look for independent evidence and/or admissions to test assumptions / qualifiers” (emphasis in original), made various assertions, which are unnecessary to detail, but included a superimposed graphic of the national flag of the State of Israel rent down the middle exposing the swastika.

35    In his affidavit, Dr Anderson described the image of the desecrated flag as “an evocative image consistent with my published view that Zionist racial ideology and racialised violence … was reminiscent of the murderous, racialised pogroms of Nazi Germany”. He also gave evidence that the slide was “version two” of an infographic he had prepared in 2015 and claimed that in adapting it for use in 2018, the swastika “had become barely visible and not central to the meaning of the graphic, so I forgot about it”: FCA 2 (at [45]).

36    By August 2018, Dr Anderson had posted to his Facebook account the lunch photograph (featuring one of those photographed wearing a jacket with a patch bearing an emblem of Ansar Allah, a group active in the central parts of Yemen (FCA 1 (at [220])) with the following offensively antisemitic slogans in Arabic: “Death to Israel”, “Curse the Jews” and “Victory to all Islam”) which, following adverse publicity, was followed by the fourth comments and the University directing him to remove the lunch photograph and his comments from his Facebook page. He did not do so. Instead, he sent an email stating that he “never respond[s] favourably to secret demands and threats”: FCA 1 (at [49]).

37    On 10 August 2018, the University sent Dr Anderson a letter raising allegations concerning the lunch photograph, the fourth comments and his refusal to comply with the direction to remove the comments. Dr Anderson doubled down and then, on 19 October 2018, he received the final warning, advising of the outcome of the earlier misconduct allegation and stating (FCA 1 (at [69])):

It is of significant concern to me that you have repeated conduct in respect of which you received a formal warning.

I am satisfied that Allegations 2, 3, 4, 6 and 7 are substantiated and Allegation 5 is partially substantiated, and that your breaches of the Code of Conduct - Staff and Affiliates (Code of Conduct) and Public Comment Policy amount to Misconduct.

I am satisfied that throughout this process, you were afforded a reasonable opportunity to respond to the allegations.

This letter constitutes a final warning that you must appropriately discharge your obligations pursuant to your contract of employment with the University, the Enterprise Agreement, the Code of Conduct and the Public Comment Policy going forward.

I specifically remind you of the requirement to exercise good and ethical judgment in any public comment, demonstrate professionalism (including in public comment) and exercise appropriate restraint. I also remind you of your obligations to act fairly and reasonably, and treat all relevant persons, including staff and members of the public, with respect, impartiality, courtesy and sensitivity.

Should any further incidents of this nature occur, the University will rely upon the 2 August 2017 letter, and this final warning letter to determine any appropriate further Disciplinary Action, up to and potentially including the termination of your employment …

(Emphasis in original)

38    The final warning also addressed a new issue, namely posts of which the University had become aware. The letter stated (FCA 1 (at [70])):

[T]he University is aware of other posts made on social media accounts in your name which raise serious concerns about your willingness to comply with your employment obligations. In particular, I refer to a Facebook Post of a presentation in a “Reading Controversies” Seminar delivered for the Centre for Counter Hegemonic Studies. This post was made on 23 April 2018 and shows a cropped Swastika superimposed over the Israeli flag (see Annexure C to this letter).

Given the period of time which had elapsed from when you had made the post and when it was referred to the University, a decision was made not to include it in the allegations. In the circumstances, the University will not raise this post with you formally. However, in my view, a reasonable person would regard the superimposition of a cropped Swastika over the Israeli flag as offensive.

Please immediately add a disclaimer in any medium in which this post appears that the presentation is not connected in any way with the University of Sydney and remove any references to the University of Sydney from the relevant posts.

You must also make it clear in any future posts relating to the Centre for Counter Hegemonic Studies that it is not associated with, or endorsed by, the University of Sydney in any way, consistent with guideline (e) of the Public Comment Policy.

I have separately written to the NTEU in relation to the matters that they have raised on your behalf. I confirm that you are able to confirm the fact of the allegations, but not the substance of them. I also confirm that you are required to keep confidential the contents of this letter, including on social media. …

39    This direction required Dr Anderson to “add a disclaimer in any medium in which this post appears that the presentation is not connected in any way with the University of Sydney and remove any references to the University of Sydney from the relevant posts” (disaffiliation direction).

40    On 19 or 20 October 2018, in defiance of the disaffiliation direction, Dr Anderson reposted the slides to his Facebook and Twitter accounts: FCA 1 (at [76]–[78]), being the fifth comments, without disclaimer or disaffiliation: FCA 1 (at [267]). On 26 October, Professor Garton wrote to Dr Anderson raising further allegations of potential misconduct, to which Dr Anderson responded by email on the same day asserting that he rejected the University’s position as detailed in the final warning and that he did not intend to respond further: FCA 1 (at [79]–[83]).

41    On 3 December 2018, Professor Garton notified Dr Anderson by letter that the allegations contained in the 26 October letter were substantiated and were regarded as constituting serious misconduct. Consequently, Professor Garton suspended Dr Anderson from duty and proposed to terminate his employment: FCA 1 (at [88]). The response of Dr Anderson was again defiant, publishing posts on his Facebook and Twitter accounts on 4 and 5 December 2018 concerning his suspension, including part of the text of Professor Garton’s letter (despite a direction that he refrain from posting University letters on social media): FCA 1 (at [89]).

42    On 11 February 2019, the University terminated Dr Anderson’s employment, taking into account the two written warnings, including the final warning, which do not refer to the third comments: FCA 2 (at [66]).

C    THE REASONING BELOW AS TO THE THIRD AND FIFTH COMMENTS

43    As to the third comments, while accepting the slide would be “offensive to many people”, the primary judge found their making constituted the exercise intellectual freedom: FCA 2 (at [49]–[50]). His Honour found, however, that it did not rise to the level of constituting harassment, vilification or intimidation: FCA 2 (at [49]). It was by this path of reasoning that the primary judge found the “University did not establish any breach of any standard which might have engaged cl 317 of the 2018 Agreement”: FCA 2 (at [49]).

44    As to the fifth comments, his Honour had initially found that the fifth comments constituted an “assertion of an unfettered right to exercise what [Dr Anderson] considered to be intellectual freedom” and conveyed that Dr Anderson “could post such material if he wanted and the University had no right or entitlement to prevent him from doing so”: FCA 1 (at [255]). His Honour also found in circumstances where Dr Anderson had refused to follow lawful directions (and where it would be reasonable to infer that he would continue to refuse to follow lawful directions), it was reasonably open for Professor Garton to conclude that the making of the fifth comments was such as to constitute “serious misconduct”: FCA 1 (at [268]).

45    In FCAFC 1, it was then held (at [285]–[287]) that given the way the case had been pleaded and run, the primary judge was required to determine the basis on which the University in fact terminated Dr Anderson’s employment such that if it was correct the University terminated Dr Anderson’s employment without notice on the basis of conduct which constituted the exercise of the right in accordance with the in-built qualifications, the decision to terminate necessarily miscarried.

46    On remittal, despite what the primary judge had initially found in FCA 1, his Honour considered himself constrained to conclude that the fifth comments did constitute an exercise of academic freedom. It is worth setting out his Honour’s reasoning in this regard (FCA 2 (at [52]–[53])):

[52]     I have set out earlier what the plurality stated [in FCAFC 1] at [266]. It is repeated for convenience:

[I]f: (a) an exercise of intellectual freedom in accordance with cll 315 and 317 cannot be misconduct at all (which is the case), and (b) posting the PowerPoint presentation initially was an exercise of that right in accordance with cll 315 and 317 (an issue of fact the Court must determine for itself on the remittal), then:

(1)     Dr Anderson would be acting lawfully in wanting to “express his view that he had a right to post material of that kind if he wished” and would be right to insist he had the right to do so “without censure”. His self-described “assertion of my intellectual freedom” would be lawful. Contrary to J [256], these factors would not indicate that the conduct was not an exercise of the right of intellectual freedom;

(2)    also contrary to J [256], it was not necessary for Dr Anderson to prove or explain what course he was teaching at the time that made it relevant to re-post the PowerPoint presentation. The right of intellectual freedom is not confined to public comments about the content of courses being taught or taught at the time of the public comment; and

(3)    if Dr Anderson intended the re-posting of the PowerPoint presentation to be “an assertion of an unfettered right to exercise what he considered to be intellectual freedom” and was being “deliberately provocative” in conveying that Dr Anderson “could post such material if he wanted and the University had no right or entitlement to prevent him from doing so”, he would have been correct and entitled to make that point to the University by the re-posting of the material.

[53]    Given that (a) and (b) in the chapeau of [266] are both satisfied, it necessarily follows that the conclusions of the plurality in (1), (2) and (3) are applicable and that Dr Anderson was acting lawfully when he re-posted the Gaza Graphic as a means of asserting his right to intellectual freedom.  The University did not establish any breach by Dr Anderson of a standard which might engage cl 317 of the 2018 Agreement.

(Emphasis added)

47    Hence it can be seen the primary judge’s finding (FCA 2 (at [49])) that the initial posting of the image (by the third comments) was an exercise of academic freedom in accordance with the in-built qualifications, informed by his Honour’s separate conclusion as to the fifth comments. In any event, his Honour again reasoned that the “University did not establish any breach by Dr Anderson of a standard which might engage cl 317 of the 2018 Agreement”: FCA 2 (at [53]).

D    ONUS AND THE THIRD AND FIFTH COMMENTS    

48    As noted above, because of the way in which the University parties advanced their submissions, it is unsurprising his Honour was not directed to the need to make a determination as to whether the Union parties had discharged their onus of establishing Dr Anderson had, with regard to these comments, exercised the right of intellectual freedom in a way which was both “responsible” (cl 315) and in accordance with the “highest ethical, professional and legal standards” (cl 317): FCAFC 1 (at [7], [128] and [269]).

49    These qualifications must be given both context and content. Assessment as to what is responsible, like what is reasonable, is open-textured and value-laden; they are standards predicated on “fact-value complexes, not on mere facts”: see Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223 (at [325]), quoting a former Challis Professor of Jurisprudence and International Law at the University, Professor Julius Stone.

50    The assessment and evaluation of whether conduct is of a nature that is consistent with the exercise of the right as qualified is necessarily informed by the objects and functions of the intellectual community constituted by the University. Section 6 of the University of Sydney Act 1989 (NSW) relevantly provides:

6     Object and functions of University

(1)     The object of the University is the promotion, within the limits of the University’s resources, of scholarship, research, free inquiry, the interaction of research and teaching, and academic excellence.

(2)     The University has the following principal functions for the promotion of its object—

(a)     the provision of facilities for education and research of university standard,

(b)     the encouragement of the dissemination, advancement, development and application of knowledge informed by free inquiry,

(c)     the provision of courses of study or instruction across a range of fields, and the carrying out of research, to meet the needs of the community,

(d)    the participation in public discourse,

(e)     the conferring of degrees, including those of Bachelor, Master and Doctor, and the awarding of diplomas, certificates and other awards,

(f)     the provision of teaching and learning that engage with advanced knowledge and inquiry,

(g)     the development of governance, procedural rules, admission policies, financial arrangements and quality assurance processes that are underpinned by the values and goals referred to in the functions set out in this subsection, and that are sufficient to ensure the integrity of the University's academic programs.

(Emphasis added)

51    As the University parties correctly submit, for present purposes, it is sufficient to observe that:

(1)    a “responsible” exercise of the right requires at least that public debate be about issues and ideas, rather than ad hominem and intemperate attacks;

(2)    highest professional standards are those which pursue “academic excellence” and include, at a minimum, evidence-based analysis applying the scientific method; and

(3)    highest legal standards require at least that there be compliance with lawful and reasonable directions.

52    When regard is had to the in-built qualifications and one gives them content (including by reference to the objects and functions of the University), I confess I am unable to see how the making of the third and fifth comments could be characterised as being responsible and consistent with the highest ethical, professional and legal standards.

53    As to the third comments, I am conscious the primary judge directed himself to considering the observations of Jagot and Rangiah JJ and noted (FCA 2 (at [41])):

[41]    … the plurality of the Full Court observed at [267] that it is the Israeli flag superimposed with the swastika which is the issue. The Full Court observed that “[e]verything else in the PowerPoint presentation involves the expression of a legitimate view, open to debate, about the relative morality of the actions of Israel and Palestinian people”. The plurality said:

[267]     Consider the PowerPoint presentation in more detail. It is the Israeli flag superimposed with the swastika which is the issue. Everything else in the PowerPoint presentation involves the expression of a legitimate view, open to debate, about the relative morality of the actions of Israel and Palestinian people. Dr Anderson is making a public comment asserting that the concept of moral equivalence between Israel and Palestinian people who attack Israel is false, in part, because of an asserted higher number of deaths of civilian Palestinians in Gaza from purportedly “precision attacks” by Israel compared to an asserted far lower number of deaths of people in Israel from purportedly “indiscriminate” attacks by Palestinians. He is including Israel within a long history of colonial exploitation by one political entity over another weaker entity or people. It does not matter whether this comparison may be considered by some or many people to be offensive or insensitive or wrong. As discussed, offence and insensitivity cannot be relevant criteria for deciding if conduct does or does not constitute the exercise of the right of intellectual freedom in accordance with cll 315 and 317.

[268] What then of the swastika superimposed over the Israeli flag? That is deeply offensive and insensitive to Jewish people and to Israel. It may involve an assertion of the very kind of false moral equivalence (comparing Israel to Nazi Germany) against which Dr Anderson is advocating in the PowerPoint presentation. Again, however, the relevant issue cannot be the level of offence which the conduct generates or the insensitivity which it involves. The issue is only whether the conduct involves the exercise of the right of intellectual freedom in accordance with cll 315 and 317. Whether this part of the PowerPoint presentation operates to take the otherwise legitimate expressions of intellectual freedom elsewhere in the PowerPoint presentation outside of the scope of cll 315 and 317 is a question of fact which must be determined on the whole of the evidence. For example, did the evidence support an inference that the superimposition of the swastika over the flag of Israel was a form of racial vilification intended to incite hatred of Jewish people? That is a matter which may only be determined on the whole of the evidence as part of the remittal of the matter.

[269] Accordingly, the primary judge was required to decide, as a matter of objective fact by reference to the evidence of all the relevant circumstances, whether each or any of the instances of Dr Anderson’s impugned conduct (excluding the lunch photo) constituted an exercise of the right of intellectual freedom in accordance with cll 315-317 of the 2018 agreement (or, if applicable, the equivalent provisions of the 2013 agreement). This included consideration of whether the conduct did or did not involve harassment, vilification or intimidation or the upholding of the principle and practice of intellectual freedom in accordance with the highest ethical, professional and legal standards.

    (Emphasis added)

54    Although I accept that the “relevant issue [that is, the only issue] cannot be the level of offence which the conduct generates or the insensitivity”, the level of offence can, of course, be relevant to the objective characterisation of the comments. For my part, the posting of this image, which is self-evidently offensive (and obviously disturbing to a section of the University community) could not amount to an exercise of intellectual freedom which was both “responsible” (cl 315) and in accordance with the “highest … standards” (cl 317) – a fortiori where Dr Anderson conceded the offensive image was not even important nor “central to the meaning of the graphic” and was so peripheral to whatever point he was seeking to make that Dr Anderson “forgot” about the image.

55    For completeness, I should note that given the way the case was advanced by the University below, senior counsel accepted it was not open on appeal for the University to advance the case that the superimposition of the swastika over the flag of the State of Israel was a form of vilification in that it was apt to incite hatred toward, revulsion of, or serious contempt for, a group of people (whatever be the underlying merits of that argument) (T5.15).

56    As to the fifth comments, in the event the third comments are not an exercise of the right in accordance with cll 315 and 317, the foundation for his Honour considering himself constrained by what was said in FCAFC 1 (at [266]) falls away.

57    The making of the fifth comments constituted a wilful defiance of the disaffiliation direction, which direction was lawful and reasonable. Any suggestion the disaffiliation direction was unlawful or unreasonable on the basis that it conflicted with the exercise of academic freedom not only presupposes that in making the fifth comments, Dr Anderson was exercising such freedom reasonably (which he was not) but, moreover, that it was not open for the University to disclaim the attribution of Dr Anderson’s views to the University. As the University points out, this is acknowledged in the report by the Hon R S French, Report of the Independent Review of Freedom of Speech in Australian Higher Education Providers (Report, 19 March 2019) (at 126): “[s]o far as extra-mural speech by academic staff is concerned, a university or other higher education provider is entitled to ask that they disclaim any attribution of their views to the university”.

58    In summary, in making the third and fifth comments, Dr Anderson was not exercising the right of intellectual freedom in accordance with the 2018 Agreement. In any event, by reason of the lack of assistance given to the primary judge by the University parties below, I agree with Perram J that error is established because his Honour did not turn his mind to whether Dr Anderson’s case positively satisfied him that the comments were made in a manner consistent with the in-built qualifications (FCAFC 1 (at [256])) on the right of intellectual freedom imbedded within cll 315 and 317.

E    PROPOSED ORDERS

59    Subject to the above, I agree with the reasons of Perram J and the orders proposed by his Honour.

Associate:

Dated:    17 May 2024

REASONS FOR JUDGMENT

KENNETT J:

INTRODUCTION

60    The respondents in this appeal, the National Tertiary Education Industry Union (NTEU) and Dr Tim Anderson (the Union parties), filed an originating application on 15 April 2019 seeking:

(a)    declarations that the present appellant, the University of Sydney (the University), and Professor Stephen Garton (the appellant in a related appeal (NSD 1130 of 2022)), (together the University parties), along with Professor Annamarie Jagose, had contravened provisions of the Fair Work Act 2009 (Cth) (the FW Act);

(b)    an order for reinstatement of Dr Anderson;

(c)    an order for compensation to be paid to Dr Anderson; and

(d)    pecuniary penalties.

61    The primary judge delivered judgment on 26 November 2020, dismissing the proceeding: [2020] FCA 1709; 302 IR 272 (FCA 1).

62    The Union parties appealed. The Full Court published reasons on 31 August 2021 ([2021] FCAFC 159; 309 IR 159) (FCAFC 1), followed by further reasons and orders on 21 October 2021 ([2021] FCAFC 184) (FCAFC 2). It made orders joining Professors Jagose and Garton as respondents and dismissed the proceeding as against the former. It otherwise remitted the matter to the primary judge, to be determined on the basis of the existing evidence.

63    The primary judge held a further day of hearing on 28 June 2022 and published reasons on 27 October 2022 (FCA 2), followed by orders giving effect to those reasons on 22 November 2022 (FCA 3). His Honour held that the University parties had contravened various provisions of the FW Act and made declarations accordingly.

64    Each of the judgments and reasons mentioned so far is discussed in more detail below.

65    Following another day of hearing, the primary judge published reasons on the remaining questions of relief on 29 May 2023 ([2023] FCA 537) and then made final orders, giving effect to those reasons, on 5 June 2023 (FCA 4). His Honour dismissed the claims for damages and pecuniary penalties, ordered reinstatement of Dr Anderson (with some consequential orders) and stayed the reinstatement order pending the outcome of this appeal.

66    The University filed a notice of appeal from the orders in FCA 3 on 4 July 2023. The notice of appeal was later amended so as to challenge FCA 4 as well. Professor Garton also appealed against FCA 3.

67    The Union parties reached an agreement with Professor Garton and proposed at the commencement of the hearing that his appeal should be allowed. In response to concerns expressed by the Court as to whether an appeal could be allowed solely on the basis of the parties’ consent, it was agreed that the matter should be remitted to a single judge who could, in the original jurisdiction, make consent orders giving effect to the parties’ agreement. The matter was remitted and consent orders were made on 5 September. Shortly afterwards Professor Garton’s appeal was dismissed as moot. Accordingly, only the University’s appeal remains before the Court.

OUTLINE OF THE FACTS

68    Dr Anderson commenced employment at the University in 1998 and was appointed to an ongoing Associate Lectureship in the Political Economy Group, within the Department of Economics, in January 1999. He became a Lecturer in 2000 and a Senior Lecturer in 2008. The issues in the proceeding arise out of certain comments that he made on social media platforms between April 2017 and October 2018.

69    The University of Sydney Enterprise Agreement 2013-2017 (the 2013 Agreement) had come into effect on 16 January 2014. A later agreement, the University of Sydney Enterprise Agreement 2018-2021 (the 2018 Agreement) commenced on 27 April 2018. The relevant provisions of these agreements were the same.

The first comments: April – May 2017

70    On 8 April 2017 Dr Anderson tweeted a picture of the then United States President, Donald Trump, and his two predecessors, Presidents Obama and George W Bush, with the words “Masterminds of Middle East terrorism”. This followed a missile attack on a place in Syria the previous day, ordered in response to what was reported as a gas attack that had occurred in that country. The Daily Telegraph (the Telegraph), a tabloid newspaper, published a story on its front page on 11 April 2017, under the headline “Sarin Gasbag”, criticising Dr Anderson in relation to his views on this subject. The story appeared under the byline of Kylar Loussikian.

71    Mr Jay Tharappel, then a PhD student supervised by Dr Anderson and a tutor in courses that Dr Anderson taught, made comments on Twitter (as the social media platform ‘X’ was then known) about Mr Loussikian: “Armenian name right? … traitor [who] wants a second Armenian genocide … stabbing Syria in the back”. The logic of this critique does not need to be explored. The Telegraph responded with two articles: “Sydney University tutor investigated after racially-charged attack on Daily Telegraph reporter of Armenian descent” (11 April 2017) and “Assad situation for Uni loonies” (12 April 2017). The latter article included comments critical of Mr Tharappel’s position from the Armenian National Council of Australia.

72    A further article appeared in the Telegraph on 20 April 2017, written by journalist Rick Morton, headed “Assad defender condemns diggers for Syria airstrike murder”. This article took issue with comments by Dr Anderson about an air strike in Syria in which Australian Air Force personnel had been involved with the US Air Force.

73    On 4 May 2017, Dr Anderson tweeted “Murdoch press fabricates ‘genocide threat’ story in attempt to intimidate anti-war academics”, with the following graphic attached:

74    To a comment on this tweet suggesting “maybe English is not their first language”, Dr Anderson responded “Kylar is fluent in lying english”. He added the 4 May tweet to his Facebook page the next day.

75    Dr Anderson was active on Twitter on 5 May 2017. First, he published a graphic comparing Mr Tharappel’s comments with claims in the Telegraph article on 12 May. Next, he published the following in relation to Mr Morton:

76    There then occurred an exchange of messages between Dr Anderson and Mr Morton, which Dr Anderson sought to capture in the following tweet:

77    Mr Morton responded “Tim, you’ll be hearing from the lawyers”, to which Dr Anderson’s reply was “Yellow journalist Rick Morton runs off crying to his lawyers, when the tables are turned”. Dr Anderson returned to the theme the next day, tweeting:

Covering up a real massacre with lies: “condemns diggers”, “Australians should be considered murderers”. Great work Rick Morton.

78    On 10 May 2017 Dr Anderson took up a different topic: a proposed visit by US Senator John McCain to the United States Studies Centre at the University. He tweeted the following:

79    The tweets and posts on 4, 5, 6 and 10 May 2017 are the “first comments”.

Disciplinary proceedings and the second comments: May – August 2017

80    On 30 May 2017, Dr Anderson received a letter from Professor Jagose containing allegations that his conduct in making the first comments constituted a breach of the University’s Code of Conduct – Staff and Affiliates and Public Comment Policy. The letter said that, if substantiated, the allegations could amount to misconduct or serious misconduct and disciplinary action could be taken pursuant to the 2013 Agreement, potentially including termination of his employment. It outlined Dr Anderson’s opportunity to respond. The letter also said that the matters raised in it were confidential and “directed” Dr Anderson not to disclose or communicate its contents (or the allegations or information relating to them) to anyone except his family, support person or professional adviser.

81    Dr Anderson’s response to this direction, which came on the same day, was to defy it by publishing the following on Facebook and Twitter (the second comments):

82    He also:

(a)    sent an email to colleagues in the Department of Political Economy on 31 May 2017 headed “Anti-war academic gagged at Sydney Uni”, including extracts from Professor Jagose’s letter and alleging collusion with the Telegraph; and

(b)    sent an email to Professor Jagose on 6 June 2017 alleging bias and asking her to step aside.

83    One result of these actions was a letter to Dr Anderson from Professor Garton, dated 26 June 2017, containing further allegations against him in relation to his comments on Professor Jagose and the disciplinary process.

84    Dr Anderson responded to both sets of allegations, in writing, on 5 July 2017. On 2 August 2017 Professor Garton issued him with a written warning (the first warning).

The third comments: April 2018

85    On 21 April 2018 Dr Anderson gave a PowerPoint presentation during a seminar entitled “Reading Controversies”. It included a slide referred to as the Gaza graphic, which he adapted from a presentation he had prepared in 2015. On 23 April 2018 he posted the Gaza graphic to his Facebook account, as follows (the third comments):

86    It seems that the 21 April 2018 seminar was organised by or for the Centre for Counter Hegemonic Studies (CCHS), an international grouping of academics with which Dr Anderson was affiliated. The post to Dr Anderson’s Facebook page including the Gaza graphic referred to the CCHS and also identified Dr Anderson as affiliated with the University (including in that Dr Anderson’s Facebook Account featured references to employment at the CCHS and University under the heading “About Tim Anderson”).

87    Although it is not easy to see in the reproduction above, the Gaza graphic includes an image of the Israeli flag in which the middle of the flag is ripped downwards to reveal part of the flag of Nazi Germany including the swastika. Dr Anderson gave evidence that this particular image was retained from the earlier (2015) version of the graphic and had become barely visible, so that he “forgot about it”. He described the altered Israeli flag in his affidavit as “an evocative image consistent with my published view that Zionist racial ideology and racialized violence … was reminiscent of the murderous, racialized pogroms of Nazi Germany.”

The fourth comments and further disciplinary proceedings: July – August 2018

88    On 22 July 2018 Dr Anderson posted on his Facebook account a photograph taken at a lunch in Beijing (the lunch photograph). The photograph shows five people sitting at a table in a restaurant. It is unremarkable except that one of the people (Mr Tharappel) is wearing a shirt featuring a shoulder patch with a rectangular emblem and some Arabic script. The emblem is that of Ansar Allah, an Islamist group based in Yemen. The Arabic script includes words which translate into English as “Death to Israel”, “Curse the Jews” and “Victory to all Islam”.

89    A video news story concerning the lunch photograph by a Channel 7 reporter was published by 7NEWS Sydney on 2 August 2018. On 3 August 2018 Dr Anderson posted on Facebook and Twitter a link to the item, including the following comment (the fourth comments):

Colonial media promotes ignorance, apartheid and war. Channel 7’s Bryan Seymour accuses Indian Australian student of “racism” for siding with #Yemen and other Arab states against #ApartheidIsrael. Also lies about those in solidarity with #Korea #DPRK.

90    Later on 3 August, the University sent Dr Anderson a letter directing him to remove the lunch photograph and his comments from his Facebook page. He did not do so. Instead, he sent Professor Jagose an email stating that he “never respond[s] favourably to secret demands and threats”.

91    On 10 August 2018, the University sent Dr Anderson a letter from Professor Jagose raising allegations concerning the lunch photograph, the fourth comments and his refusal to comply with the direction to remove those comments. Dr Anderson responded to these allegations in writing on 22 August 2018.

The final warning, the fifth comments, suspension and termination: October 2018 – February 2019

92    On 19 October 2018, Dr Anderson was notified by Professor Garton that the allegations arising from the lunch photograph had been substantiated and issued with what was described as a “final warning” (the final warning). The letter included:

This letter constitutes a final warning that you must appropriately discharge your obligations pursuant to your contract of employment with the University, the Enterprise Agreement, the Code of Conduct and the Public Comment Policy going forward.

I specifically remind you of the requirement to exercise good and ethical judgment in any public comment, demonstrate professionalism (including in public comment) and exercise appropriate restraint. I also remind you of your obligations to act fairly and reasonably, and treat all relevant persons, including staff and members of the public with respect, impartiality, courtesy and sensitivity.

(Emphasis in original.)

93    Referring to the third comments, the letter said (the disaffiliation direction):

Please immediately add a disclaimer in any medium in which this post appears that the presentation is not connected in any way with the University of Sydney and remove any references to the University of Sydney from the relevant posts.

You must also make it clear in any future posts relating to the Centre for Counter Hegemonic Studies that it is not associated with, or endorsed by, the University of Sydney in any way, consistent with guideline (e) of the Public Comment Policy.

94    On 19 or 20 October 2018, Dr Anderson published another post on his Facebook and Twitter accounts including the Gaza graphic, still containing the small image of the altered Israeli flag (the fifth comments). He included a comment:

Revision: how to read the colonial media, and untangle false claims of “moral equivalence”. The colonial violence of #Apartheid #Israel neither morally nor proportionately equates with the resistance of #Palestine.

95    Dr Anderson also added as a comment to the Facebook post a link to an article on the website of the CCHS. That website said that Dr Anderson was the Director of the CCHS and that he was from the University of Sydney.

96    On 26 October 2018 Professor Garton wrote to Dr Anderson raising further allegations of potential misconduct.

97    On 26 or 27 October 2018 Dr Anderson sent an email to Professor Garton and others. He said that he rejected the University’s letter of 19 October and did not intend to respond further to the letter of 26 October.

98    On 3 December 2018 Professor Garton notified Dr Anderson by letter that the allegations contained in the 26 October letter were substantiated and regarded as constituting serious misconduct, he was suspended from duty and the University proposed to terminate his employment.

99    Dr Anderson published posts on his Facebook and Twitter accounts on 4 and 5 December 2018 concerning his suspension, including part of the text of Professor Garton’s letter. Professor Garton wrote to Dr Anderson about these posts on 7 December 2018. He described those posts, among other things, as “inappropriate and contrary to my previous statements that you are not to post University letters on social media”. He directed Dr Anderson “to specifically not post this letter on social media or disclose its contents more broadly”.

100    On 11 February 2019, Professor Garton sent Dr Anderson a letter terminating his employment (the termination).

THE PROCEEDINGS

101    In view of the arguments developed in the appeal, it is necessary to describe the course of the proceedings up to this point in some detail.

Relevant legal framework

102    Section 50 of the FW Act, which is a civil penalty provision, provides that a person must not contravene a provision of an enterprise agreement. It was not in doubt that the 2013 Agreement and the 2018 Agreement “applied to” the University, and therefore imposed obligations on it (cf ss 51–52). The Union parties were entitled to apply for orders in relation to a contravention of s 50 by the University in connection with the employment of the former: s 539(2), item 4. The orders that can be made if a breach of a civil penalty provision is established include an order awarding compensation and an order for reinstatement: s 545(2).

103    As noted earlier, the 2018 Agreement came into effect in April 2018, just after the making of the third comments. However, the litigation has been conducted on the basis that the relevant provisions of the 2013 and 2018 Agreements were the same. In what follows, reference is therefore made only to the provisions of the 2018 Agreement.

104    Clause 3 of the 2018 Agreement defined “misconduct” and “serious misconduct” in the following way (omitting the examples):

Misconduct means conduct or behaviour of a kind which is unsatisfactory. Examples of conduct or behaviour which may constitute Misconduct include:

(a)     a breach of a Code of Conduct (as defined in this clause); or

(b)     a refusal or failure to carry out a lawful and reasonable instruction.

…

Serious Misconduct means:

(a)     serious misbehaviour of a kind that constitutes a serious impediment to the carrying out of a staff member’s duties or to other staff carrying out their duties; or

(b)     a serious dereliction of duties.

105    Clause 3 also defined “Codes of Conduct” to include the University’s Code of Conduct – Staff and Affiliates and Research Code of Conduct as amended from time to time (the Code of Conduct).

106    Clause 13 provided that the agreement was “a closed and comprehensive agreement” which displaced any other awards and agreements. Clause 14 provided that policies, guidelines, procedures and Codes of Conduct did not form part of the agreement. However, cl 306 provided:

306     Staff must comply with the Codes of Conduct (as defined in clause 3).

107    Clauses 315 to 317 of the 2018 Agreement dealt with intellectual freedom, as follows:

315     The Parties are committed to the protection and promotion of intellectual freedom, including the rights of:

(a)     Academic staff to engage in the free and responsible pursuit of all aspects of knowledge and culture through independent research, and to the dissemination of the outcomes of research in discussion, in teaching, as publications and creative works and in public debate; and

(b)     Academic, Professional and English language teaching staff to:

(i)     participate in the representative institutions of governance within the University in accordance with the statutes, rules and terms of reference of the institutions;

(ii)     express opinions about the operation of the University and higher education policy in general;

(iii)     participate in professional and representative bodies, including Unions, and to engage in community service without fear of harassment, intimidation or unfair treatment in their employment; and

(iv)     express unpopular or controversial views, provided that in doing so staff must not engage in harassment, vilification or intimidation.

316     The Parties will encourage and support transparency in the pursuit of intellectual freedom within its governing and administrative bodies, including through the ability to make protected disclosures in accordance with relevant legislation.

317     The Parties will uphold the principle and practice of intellectual freedom in accordance with the highest ethical, professional and legal standards.

108    Clauses 254–256 of the 2013 Agreement, which are referred to in some of the material that I quote below, are the direct equivalents of cll 315–317 and were framed in identical terms.

109    Disciplinary sanctions for misconduct and serious misconduct were provided for in cl 384, as follows:

MISCONDUCT AND SERIOUS MISCONDUCT

384     Where a staff member’s Supervisor or a relevant Delegate becomes aware of allegations that the staff member may have engaged in Misconduct or Serious Misconduct:

(a)     The Supervisor or relevant Delegate may undertake or arrange such preliminary investigations or enquiries as they consider necessary to determine an appropriate course of action to deal with the matter;

(b)     The Supervisor or relevant Delegate may, in the case of a less serious matters [sic], seek to resolve the matter directly with the staff member concerned through guidance, counselling, warning, mediation or another form of dispute resolution;

(c)     In cases other than those which are dealt with under clause 384(b), the staff member will be provided with allegations in sufficient detail to ensure that they have a reasonable opportunity to respond. The staff member will be given ten days to respond to the allegations.

(i)     If the staff member admits the allegations in full, the relevant Delegate may take Disciplinary Action.

(ii)     In other cases the relevant Delegate may:

(A)     proceed to deal with the matter under clause 384(d);     or

(B)     if the Delegate considers it appropriate to do so, appoint an Investigator to investigate the allegations and report to the relevant Delegate on their findings of fact and any other matters requested by the relevant Delegate. The Investigator will determine the procedure to be followed in conducting the investigation, subject to the requirement that such procedure must allow the staff member concerned with a reasonable opportunity to respond to the allegations against them, including any new matters, or variations to the initial allegations resulting from the investigation process. The Investigator will provide a written report to the relevant Delegate and a copy to the staff member.

(d)     Where the relevant Delegate is satisfied that a staff member has engaged in Misconduct or Serious Misconduct, the relevant Delegate may take Disciplinary Action against the staff member, provided that:

(i)     before taking Disciplinary Action the relevant Delegate must be satisfied the staff member has been given a reasonable opportunity to respond to the allegations against them;

(ii)     in any case of Disciplinary Action other than counselling, a direction to participate in mediation or an alternative form of dispute resolution or a written warning, the staff member must be given notice of the proposed Disciplinary Action and an opportunity to have the allegations examined by a Review Committee in accordance with clause 460. A request for a review must be made within five working days of receipt of notice of the proposed Disciplinary Action; and

(iii)     a staff member’s employment may be terminated only if they have engaged in Serious Misconduct, as defined in clause 3 of this Agreement …

110    The Code of Conduct, in Part 1, set out “principles”, which included the following.

The Code reflects, and is intended both to advance the object of the University, namely the promotion of scholarship, research, free inquiry, the interaction of research and teaching, and academic excellence, as well as to secure the observance of its values of:

•    responsibility and service through leadership in the community;

…

•    integrity, professionalism and collegiality in our staff; and

...

These values must inform the conduct of staff and affiliates in upholding and advancing:

•    freedom to pursue critical and open inquiry in a responsible manner;

•    recognition of the importance of ideas and ideals;

•    tolerance, honesty, respect, and ethical behaviour; and

…

111    Part 4 of the Code of Conduct was headed “Personal and Professional Behaviour” and provided, relevantly, as follows.

In performing their University duties and functions, the behaviour and conduct of staff and affiliates must be informed by the University’s object and its values and the principles enunciated in Part 1 above. All staff and affiliates must:

…

•    exercise their best professional and ethical judgement and carry out their duties and functions with integrity and objectivity;

…

•    act fairly and reasonably, and treat students, staff, affiliates, visitors to the University and members of the public with respect, impartiality, courtesy and sensitivity;

…

•    comply with all applicable legislation, industrial instruments, professional codes of conduct or practice and University policies, including …

112    Part 9 of the Code of Conduct, which was headed “Public Comment”, provided as follows:

Staff and affiliates are encouraged to engage in debate on matters of public importance.

However, staff and affiliates who make public comment or representations and, in doing so, identify themselves as staff or affiliates of the University must comply with the University’s Public Comment Policy.

113    The University’s Public Comment Policy provided, in part, as follows:

a)     The University encourages academic staff to participate in public debate and be available to the media for comment in their field of expertise.

b)     Staff contributing to public commentary should identify themselves using their University title, appointment and/or qualifications when they are writing or speaking publicly on a matter within their academic or professional field of expertise or specialisation.

c)     Statements should be accurate, professional and exercise appropriate restraint.

…

f)     When commenting in public, staff are expected to act in good faith and not misrepresent their expertise.

…

h)     Staff should maintain the highest professional and ethical standards when they associate themselves with the University in public statements. Any public statement made by a member of staff should not bring the University into disrepute.

i)     Staff should be aware that the University may take disciplinary action where this policy or the Code of Conduct have been breached.

The parties’ positions and FCA 1

114    In their further amended statement of claim (FASOC) the Union parties pleaded, relevantly, as follows.

First and second comments

(a)    The first and second comments constituted the exercise by Dr Anderson of intellectual freedom within cl 315 (FASOC [61]).

(b)    Accordingly Dr Anderson did not engage in misconduct when he made those comments (FASOC [62]).

(c)    The University had no lawful authority to impose the first warning (FASOC [63]). In doing so it breached cl 315 and therefore also cl 384 (FASOC [64], [65]).

Fourth comments

(d)    The fourth comments constituted the exercise by Dr Anderson of intellectual freedom within cl 315 and otherwise did not constitute misconduct (FASOC [69]).

(e)    Accordingly Dr Anderson did not engage in misconduct when he made those comments (FASOC [70]).

(f)    The University had no lawful authority to impose the final warning in so far as it was based on the fourth comments (FASOC [71]). In doing so it breached cl 315 and therefore also cl 384 (FASOC [72], [73]).

Lunch photograph

(g)    The posting of the lunch photograph and the refusal to remove it did not amount to misconduct (FASOC [74]).

(h)    The University had no lawful authority to impose the final warning in so far as it was imposed because of the lunch photograph (FASOC [75]). In doing so it breached cl 315 and also cl 384 (FASOC [76], [77]).

Fifth comments

(i)    The fifth comments and the sixth comments constituted the exercise by Dr Anderson of intellectual freedom within cl 315 and otherwise did not constitute misconduct (FASOC [78]). (No “sixth comments” were identified in the FASOC. The reference appears to be an error.)

(j)    Accordingly Dr Anderson did not engage in misconduct when he made those comments (FASOC [79]).

(k)    The University had no lawful authority to impose the final warning in so far as it was based on the fifth comments (FASOC [80]). In doing so it breached cl 315 and therefore also cl 384 (FASOC [81], [82]).

115    The FASOC also included allegations that the various impugned actions of the University constituted “adverse treatment” within the meaning of s 340 of the FW Act. These allegations were rejected by the primary judge, and this aspect of his Honour’s reasoning was not attacked in the appeal. The issues concerning s 340 therefore do not need to be canvassed here.

116    The argument advanced by the Union parties was encapsulated by the primary judge as follows (FCA 1 at [101]–[103]):

The applicants contended that cl 315 of the 2018 Agreement created “an enforceable right to intellectual freedom” and that any conduct which was properly classified as an exercise of that right was incapable of constituting “misconduct” or “serious misconduct” within the meaning of cl 3 of the 2018 Agreement and, accordingly, was not able to be the subject of action taken under cl 384 of the 2018 Agreement.

This construction placed particular emphasis on the word “rights” in cl 315 and the identification of those “rights” such as the rights to: “engage in the free and responsible pursuit of all aspects of knowledge and culture”; “express opinions about the operation of the University and higher education policy in general”; and “express unpopular or controversial views, provided that in doing so staff must not engage in harassment, vilification or intimidation”.

It was submitted that cl 315, properly construed, created legally enforceable rights of a kind referred to therein and that the ability to exercise those rights was limited only to the extent provided in the clause itself. Thus, for example, the right of an employee to “express unpopular or controversial views” was subject only to one limitation, namely: “provided that in doing so staff must not engage in harassment, vilification or intimidation”.

117    The University parties’ amended defence included bare denials of FASOC [61]–[65], [69]–[73] and [78]–[87]. It thus did not expose the basis upon which issue was being joined.

118    His Honour encapsulated the University parties’ position as follows (at [111]):

The respondents contended that cl 315:

(1)     was incapable of being contravened because it did not create rights; rather, it was a clause which was in the nature of a statement of commitment or purely aspirational; and

(2)     did “not confer an immunity from the operation of the Code of Conduct and/or from any lawful right of the University to impose any sanction upon [Dr Anderson] or give him directions as to his conduct”.

119    This formulation accurately summarised the primary position set out in the University parties’ outline of written submissions, filed before the hearing. Those submissions contended in the alternative that, if cl 315 did confer a right, it did not follow that exercises of intellectual freedom could not in any circumstances constitute “misconduct”. The submissions drew attention to:

(a)    the express requirement in cl 306 to comply with the Code of Conduct;

(b)    the reference in cl 317 to the highest ethical, professional and legal standards;

(c)    the application of the intellectual freedom provisions to all staff covered by the Agreement (not only academic staff);

(d)    the absence of any reference to intellectual freedom in the definitions of misconduct and serious misconduct; and

(e)    the absence of inconsistency between provisions in the Code of Conduct (affecting the manner in which views could be expressed) and intellectual freedom to express unpopular or controversial views.

120    His Honour accepted the University parties’ primary submission. He said (at [140]):

Having regard to the matters referred to above:

(1)     I accept the University’s submission that cl 315 is not capable of being contravened because it does not create any enforceable obligation. Clause 315 contains:

(a)     a statement of commitment to protect and promote the right to intellectual freedom; and

(b)     an identification of what is included in the right to intellectual freedom.

(2)     Clause 317 does create obligations enforceable according to its terms. For example, if a university directed an academic to teach a course in line only with the views expressed by a particular political party and not in accordance with the academic’s independent research, a breach of cl 317 might be established. The likely conclusion would be that the university had not “uph[e]ld the principle and practice of intellectual freedom in accordance with the highest ethical, professional and legal standards”.

(3)     Clause 317 does not give rise to an unfettered or unqualified enforceable right to exercise intellectual freedom of a kind which falls within cl 315. Rather, so far as it concerns the exercise of the right to intellectual freedom, cl 317 requires that the manner in which the right is “practiced” must be in accordance with “the highest ethical, professional and legal standards”.

(4)     I reject the applicants’ argument that an exercise of intellectual freedom cannot constitute “misconduct” or “serious misconduct” within the meaning of cl 3 of the 2018 Agreement. Clause 315 does not recognise, and cl 317 does not give rise to, “rights” the exercise of which cannot constitute “misconduct” or “serious misconduct” or which cannot be the subject of the processes contemplated by cl 384.

(5)     Where it is asserted that particular conduct constitutes the exercise of intellectual freedom within the meaning cl 315, the question whether the conduct involves “misconduct” or “serious misconduct”, if it arises, must be answered by reference to all of the circumstances including the fact that cl 317 creates an obligation to “uphold the principle and practice of intellectual freedom in accordance with the highest ethical, professional and legal standards”. Those standards might be reflected in Codes of Conduct with which staff must comply by reason of cl 306.

(6)    Clause 315 does not identify as part of the concept of intellectual freedom a general and unfettered “right” to make whatever comment one might wish to make on the basis that the making of a comment involves an intellectual process. The concept of “intellectual freedom” as used in the 2018 Agreement is not the same as free speech. It is significantly more limited.

121    The primary judge then turned to cl 384 and noted the pleading in relation to the fourth and fifth comments that they did not constitute misconduct (or serious misconduct) within the meaning of cl 3 of the 2018 Agreement (FASOC [69(b)], [78(b)]), with the result that cl 384 was breached by the imposition of the final warning and the termination (at [142]). The Union parties’ argument was summarised as follows (at [143]).

The applicants’ position was that the role of the Court was “to determine whether or not the University could lawfully [have] applied the disciplinary action and that requires determining whether or not there was [as a matter of fact] misconduct or serious misconduct”. This was said to arise from the terms of s 50 of the FW Act providing: “A person must not contravene a term of an enterprise agreement”. It was submitted that, even if the University’s view that Dr Anderson had engaged in misconduct (in relation to the final warning) or serious misconduct (in relation to the termination) was reasonably open, the Court had to reach its own conclusion on the merits about those matters and, if the Court reached a different view, then the consequence was that the University’s disciplinary action was unlawful by being in breach of cl 384 and that the University would have thereby contravened s 50 of the FW Act, a civil remedy provision.

122    His Honour rejected this contention (at [146]–[150]). Referring to the terms of cl 384(d), his Honour regarded the power to take disciplinary action as turning on the satisfaction of the relevant delegate that misconduct or serious misconduct had occurred rather than whether these things had occurred as a matter of objective fact. It had not been alleged that Professor Garton was not in fact satisfied that Dr Anderson had engaged in misconduct or serious misconduct. Nor (apart from the pleading that the relevant comments could not constitute misconduct or serious misconduct because of cl 315) had any case been pleaded directed to Professor Garton’s state of satisfaction.

123    It was noted at [142] that there was no equivalent pleading in respect of the comments leading to the first warning. Had such a case been advanced, his Honour would have rejected it for the same reasons (at [153]).

124    His Honour then considered the various comments made by Dr Anderson and summarised above. Briefly, he concluded:

(a)    It was by no means clear that the first and second comments were exercises of “intellectual freedom” falling within cl 315. It was not clear that they were an aspect of “independent research” or the “dissemination … of research”. However, his Honour assumed that the comments were exercises of intellectual freedom (at [160]–[161]).

(b)    Nevertheless the imposition of the first warning did not breach cl 315 because that clause did not create a legally enforceable right, and did not have the effect that an exercise of intellectual freedom was incapable of constituting misconduct (at [162]). The comments were not immune from processes under cl 384 (at [163]). It was open to the University to take disciplinary action in respect of an exercise of intellectual freedom if satisfied that the relevant conduct did not meet the standards required by cl 317 or other relevant clauses of the enterprise agreement (at [164]).

(c)    It was not argued that the posting of the lunch photograph was an exercise of intellectual freedom. His Honour proceeded on the basis that the fourth comments could amount to such an exercise (at [214]).

(d)    However, the imposition of the final warning did not breach cl 315 because that provision did not have the effect that anything that could be classified as an exercise of intellectual freedom therefore could not constitute misconduct (at [215]). It was open to the University to invoke cl 384 and to be satisfied that misconduct had occurred where, in the context of an exercise of intellectual freedom, the standards required by cl 317 or other relevant clauses had not been met (at [217]).

(e)    As to the separate pleading that the fourth comments were not misconduct as defined in cl 4, the Union parties had not pleaded or articulated a case to the effect that Professor Garton was not in fact satisfied as to the existence of misconduct or that, apart from the intellectual freedom issue, it was not open to him to be so satisfied (at [218]). Nor did the evidence establish such a case (at [219]).

(f)    The Union parties submitted that the posting of the lunch photograph was not relevantly “misconduct” because it was not conduct engaged in by Dr Anderson in the course of his employment or sufficiently connected with that employment. The photograph was taken while Dr Anderson was on sabbatical and posted to his personal Facebook account, although that account identified him as an employee of the University. His Honour concluded that a narrow view should not be taken of the concept of “duties and functions” in the Code of Conduct; academics might engage in public debate on their areas of interest outside working hours, including while on sabbatical; and the Facebook account, while personal, was used by Dr Anderson to express opinions publicly on his areas of academic interest (including the publication of comments for which he claimed the protection of intellectual freedom under the 2018 Agreement). It was not necessary to decide the merits of these issues. It was open to Professor Garton to take the view that the posting of the photograph constituted misconduct (at [227]).

(g)    It was also pleaded that the fourth comments did not constitute “misconduct” quite apart from their status as exercises of intellectual freedom. Again, his Honour held that it was not necessary for the Court to state its own view as to whether the comments were misconduct on the basis that they were “unsatisfactory” or breached the Code of Conduct. The view taken by Professor Garton was open and it was not contended that he was not in fact satisfied that the conduct constituted misconduct (at [233]).

(h)    The directions to remove the posts of the lunch photograph and the fourth comments were lawful (at [235]).

(i)    For the reasons summarised at (c) to (h), the imposition of the final warning did not breach cl 315, fail to comply with cl 384 or contravene s 50 of the FW Act (at [238]).

(j)    The posting of the Gaza graphic on 19 or 20 October 2018 (the fifth comments) was not a genuine exercise of intellectual freedom in the senses given in cl 315(a) or (b)(iv), which were the provisions upon which the Union parties relied (at [256]). This was on the basis that the connection between the posting of the graphic (as opposed to its use in course materials) and Dr Anderson’s academic work was not satisfactorily explained. The evidence was that he re-posted the graphic as an assertion (rather than an exercise) of an unfettered right to exercise what he considered to be intellectual freedom. It was “deliberately provocative” (at [255]).

(k)    Even if the fifth comments did constitute the exercise of intellectual freedom, that did not have the consequence that it was incapable of amounting to “serious misconduct” or that the processes under cl 384 could not be engaged (at [258]–[260]).

(l)    It was not necessary for the Court to come to its own view as to whether the fifth comments constituted “serious misconduct” (at [261]–[262]).

(m)    Although these conclusions were irrelevant to the case as pleaded and run, it was not established that Professor Garton was not in fact satisfied that the relevant conduct was “serious misconduct” or that his satisfaction was vitiated or not open (at [263]–[268]).

(n)    For the reasons summarised at (j) to (m), the termination did not involve a breach of cl 315, a failure to comply with cl 384 or a contravention of s 50 of the FW Act (at [269]).

125    For these reasons his Honour dismissed the application in so far as it alleged contraventions of s 50.

The first appeal and FCAFC 1

126    The Union parties’ notice of appeal took issue with the following aspects of FCA 1:

(a)    the findings at [7] and [140] that cl 315 of the 2018 Agreement did not create enforceable obligations (ground 1);

(b)    the finding at [7] and [140] that an exercise of intellectual freedom can constitute “misconduct” or “serious misconduct” in the relevant sense (ground 2);

(c)    the finding at [227] and [236] that the posting of the lunch photograph was sufficiently connected to Dr Anderson’s employment to constitute “misconduct” in the relevant sense (ground 3(a) and (c)); and

(d)    the finding at [235] that the University gave Dr Anderson a lawful and reasonable direction to remove the lunch photograph from his Facebook page (ground 3(b)).

Summary

127    The Full Court (Jagot and Rangiah JJ, Allsop CJ agreeing) held that cl 315 did create enforceable obligations and that conduct which satisfied the requirements of cll 315–317 could not also constitute misconduct or serious misconduct. In that regard, the specific rights and duties in cll 315–317 prevailed over the general duty in cl 306 to comply with the Code of Conduct, making the latter document irrelevant to whether conduct constituted an exercise of intellectual freedom in accordance with those clauses. Their Honours also held that, in determining whether cl 384 had been complied with, the Court must decide as an objective fact whether there was serious misconduct. That included whether relevant conduct constituted the exercise of intellectual freedom in accordance with cll 315–317. In view of the way the issues have emerged in this appeal some aspects of their Honours’ reasoning should be set out in full.

128    At [40] Jagot and Rangiah JJ said the following, by way of summary.

As will be explained, the primary judge did not receive adequate assistance from the parties below and his Honour’s process of reasoning accordingly miscarried as follows:

(1)     in respect of the claimed exercises of the right of intellectual freedom by Dr Anderson, the primary judge, in effect, said he was holding the appellants to their case as pleaded relying on cl 315 of the 2018 agreement and thus misconstrued cll 315-317 of that agreement, in circumstances where:

(a)     in oral and written opening submissions before the primary judge, the appellants had accepted that cl 315 could not be construed in isolation from cl 317 and had accepted that any exercise of rights under cl 315 had to be in accordance with that clause and cl 317, and the respondents made no objection to the appellants having done so;

(b)     the respondents’ primary and alternative cases before the primary judge were also to the effect that cl 315 could not be construed in isolation from cl 317. Their primary case was that cl 315 and/or both clauses conferred no enforceable rights capable of contravention. Their alternative case was that if, contrary to their primary case, cl 315 and/or both clauses did confer such rights, the rights had to be exercised in accordance with both clauses and the University’s Code of Conduct;

(c)     as a matter of forensic logic it was for the appellants to plead that Dr Anderson’s conduct involved the exercise of the right in cl 315 (which they did) and for the respondents to plead that if cl 315 involved an enforceable right (which it does) then the right had to be exercised in accordance with cl 317 (which they did not plead, but did put to the primary judge); and

(d)     as a result, if there was any deficiency in the appellants’ pleading in not referring to cl 317 as a qualification on the right conferred by cl 315 (which there was not), the deficiency could not have been material;

(2)     the parties did not draw the primary judge’s attention to the consequences of the fact that the appellants had pleaded and were running a number of separate cases (apart from their adverse action case under s 340, rejected by the primary judge and no longer pressed), being:

(a)     a case that the University’s warnings and termination involved a breach of cl 384. It was said by the appellants that, as a result, the University contravened s 50 of the Fair Work Act, making available the relief of compensation and reinstatement as specified in s 545 of that Act (a provision regrettably not pleaded or mentioned in the appellants’ submissions before the primary judge, despite it being the source of the main relief sought). The primary judge rejected this cl 384 case. The appellants did not press this case in the appeal. As explained below, however, this creates a problem for the appellants. It is also apparent that in rejecting the cl 384 case, again due to the oversight of the parties, the primary judge does not mention some other critical provisions (cll 90 and 434) which assist in identifying the role of cl 384 and would have made the function of cl 384(d)(iii) clear;

(b)     a case that the University’s warnings and termination were in breach of cl 315 of the 2018 agreement. It was said that, as a result, the University contravened s 50 of the Fair Work Act, making available the relief of compensation and reinstatement as specified in s 545 of that Act; and

(c)     a case that, even if the fourth comments and the fifth and sixth [sic] comments did not involve the exercise of the right in accordance with cll 315-317 they were not, in any event, misconduct at all (as to the fourth comments) or serious misconduct (as to the fifth and sixth [sic] comments). This meant that the Court also had to determine these issues for itself, but the primary judge did not do so and instead confined himself to considering the reasonableness of the state of satisfaction reached by the University’ delegate in this regard; and

(3)     the primary judge’s observation in J at [141] that if the appellants had “pleaded a case based on breach of cl 317, the result would not have been any different” is incorrect as [is] his Honour’s observation to the same effect about the fifth comments in J at [257]. This is because:

(a)     the question whether conduct involved the exercise of the right of intellectual freedom in accordance with cll 315-317 is for the Court to determine for itself in all of the circumstances, whereas the primary judge (apparently relying on the respondents’ erroneous submissions) confined himself to considering the reasonableness of the state of satisfaction reached by the University’ delegate in this regard (which was an issue only in the cl 384 case and not otherwise);

(b)     if conduct involved the exercise of the right in accordance with cl 315 (including the inbuilt qualifications on the exercise of that right in cll 315 and 317) then, as the appellants contended, that conduct could not be misconduct or serious misconduct. The primary judge’s contrary conclusion (again based on the respondents’ erroneous submissions) was in error; and

(c)     if this was so, the appellants’ contention that the University itself breached cll [sic] 315 if it gave warnings to and terminated Dr Anderson’s employment based, in whole or in part, on conduct that involved the exercise of the right in accordance with cll 315–317 had to be addressed, but was not; and

(d)     while the appellants’ claims of breach of cl 384 were addressed, the primary judge did so on an erroneous basis (involving a misconstruction of cl 384(d)(iii)), apparently resulting from the fact that the parties never referred his Honour to cll 90 and 434). If the University’s conduct involved breach of cl 384(d)(iii) of the 2018 agreement, the University would have contravened s 50 of the [FW Act], making available the relief of compensation and reinstatement as specified in s 545 of that Act. The primary judge did not consider these issues.

Arguments concerning the parties’ pleaded cases

129    During the hearing of the first appeal, an issue arose as to whether the Union parties had advanced a case below to the effect that the Court had to decide for itself whether conduct that formed the basis for the first warning, the final warning or the termination amounted to “misconduct” or “serious misconduct”. Counsel for the University parties put in oral submissions that such a case had never been run (see the extracts set out at [121]). Further written submissions acknowledged that, before the primary judge, the Union parties had identified the task of the Court as “determining whether the relevant conduct of Dr Anderson was an exercise of the right of intellectual freedom”, but also observed that they had put that:

… it was for Dr Anderson to determine whether he was exercising his right of intellectual freedom and how he would exercise that right, subject only to the in-built limitations of cl 315 (see, for example, T 299/8 to 25; 287/46 to 288/4, 14/13 to 19).

130    Hence it was submitted that, in their case at first instance, the Union parties had contended that “it was for Dr Anderson and not the Court to determine if his conduct constituted the exercise of a right of intellectual freedom” (at [123]). According to the Union parties, however, this was a “travesty” of the case they had put below (at [135]). Not surprisingly, that submission was accepted (at [136]–[139], [142]–[143]): as a proposition concerning the operation of cl 384, the position attributed to the Union parties makes no sense. The problem, in their Honours’ view, was not that the Union parties’ position had changed but that it had been inadequately explained to the primary judge (at [140]). Hence (at [141]):

The primary judge appears to have assumed that his rejection of the appellants’ case based on cl 384 necessarily meant that their separate cases must fail on the same basis. This was not so as those cases depended not on the state of satisfaction of the University’s delegate (which the appellants did not challenge), but the objective fact of whether the conduct was or was not the exercise of the right of intellectual freedom and the objective fact of whether the fourth comments and the fifth and sixth [sic] comments were, respectively, misconduct or serious misconduct.

131    The University also submitted that the Union parties were putting a new case about the role of cl 317. It was put that the Union parties had not placed any reliance on cl 317 before the primary judge, while the University parties had “always accepted that cl 317 has work to do”. Their Honours did not accept these propositions. They said (at [128]–[129]):

The fact that the University now accepts that cl 317 is capable of being contravened exposes the aridity of the debate before the primary judge about whether cl 315, in and of itself, involves an enforceable right which could only be exercised in accordance with cl 317 or involves a mere commitment. Clause 315 could never be construed in isolation. It always had to be construed in context, including cll 316 and 317. Under these provisions, intellectual freedom is a right, a duty and an aspiration. The relevant rights are in cl 315, as the appellants submitted to the primary judge. But they are rights qualified by and subject to the co-extensive rights and duties in cll 316 and 317. This is why, as a matter of forensic logic, the appellants having pleaded exercise of the right in accordance with cl 315, it was for the respondents to plead that any such exercise had to being [sic] accordance with cl 317. The respondents did not so plead, but did put this to the primary judge.

Further, the summary of the respondents’ own case before the primary judge set out in the paragraph above … also exposes the inaccuracy of the University’s submissions about the appellants’ case in the appeal.

132    Commencing at [144], their Honours traced the parties’ positions on the relationship between cll 315 and 317.

133    The written opening submissions before the primary judge were summarised as follows (at [152]–[153]).

In their opening written submissions filed in advance of the hearing before the primary judge the appellants submitted as follows:

(1)     clauses 315-317 of the 2018 agreement appear under the heading “Intellectual Freedom”;

(2)     on its proper construction, cl 315 of the 2018 agreement creates enforceable rights;

(3)     read in the context of the 2018 agreement as a whole, it is seen that, amongst other things, cl 315 creates an enforceable right and “cl 317 … regulates the manner in which the right is to be exercised”;

(4)     the 2018 agreement operates such that conduct that constitutes the exercise of intellectual freedom cannot constitute misconduct or serious misconduct within the meaning of cl 3 of the 2018 agreement; and

(5)     the impugned conduct of Dr Anderson constituted the exercise of intellectual freedom in accordance with cl 315 of the 2018 agreement.

In their opening written submissions filed in advance of the hearing before the primary judge the respondents submitted:

(1)     clause 315 of the 2018 agreement is not capable of being contravened and reflects aspirational statements; and

(2)     if cl 315 of the 2018 agreement conferred any right of intellectual freedom capable of being contravened (which is denied) then it does not mean that conduct constituting the exercise of that right cannot also be misconduct or serious misconduct because:

(a)     staff of the University are expressly required in the agreements to comply with the Code of Conduct (cl 306 of the 2018 agreement and cl 256 of the 2013 agreement); and

(b)     “[clause] 317 recognises that the parties will uphold the principle and practice of intellectual freedom in accordance with the highest ethical, professional and legal standards”. Further:

Those professional standards that apply to staff of the University (and with which staff are required to comply) include the Code [of Conduct]. The essence of the [appellants’] contentions is that the so-called right to “intellectual freedom” is only constrained by the obligation “not [to] engage in harassment, vilification or intimidation”. This contention ignores cl 317, which is reinforced by cl 306 (as to the Code [of Conduct]);

(Emphasis added.)

134    Thus their Honours concluded that (at [154]–[155]):

… while the appellants contended that cl 315 was the source of the relevant right, they accepted that the manner in which that right could be exercised was subject to cl 317. The appellants also thus must be taken to have maintained that Dr Anderson’s conduct involved an exercise of the right in cl 315 in a manner which accorded with the requirements of cl 317. Otherwise, the appellants could not have maintained, as they did, that Dr Anderson’s conduct was authorised by cl 315.

It is also apparent that the respondents denied that cl 315 involved an enforceable right of intellectual freedom but said, in the alternative, that if it did then the right was subject to both the Code of Conduct and cl 317. The respondents maintained that Dr Anderson’s conduct, if it involved an exercise of an enforceable right under cl 315, which the respondents denied, was not an exercise of the right which accorded with the Code of Conduct or cl 317.

135    Similar positions were taken in the parties’ closing submissions before the primary judge, which their Honours summarised in detail at [163]–[170].

136    Their Honours drew six points from this narrative (at [176]–[181]).

(a)    The Union parties had focused on cl 315 but also accepted that the right it conferred was subject to the limitations in cl 317.

(b)    The Union parties consistently maintained that it was necessary for the Court itself to determine whether Dr Anderson’s conduct amounted to exercises of the right to intellectual freedom in accordance with cll 315–317.

(c)    The University parties’ primary case was that cl 315, construed in context, did not give rise to any enforceable rights. Their alternative case was that, if it did so, that right was qualified by limitations in cll 315 and 317, as well as the Code of Conduct and other University policies.

(d)    The Union parties never put to the primary judge that it was for Dr Anderson to determine what he could or could not do.

(e)    The University parties never objected to the Union parties contending before the primary judge that “clauses 315 to 317 confer an enforceable right on persons”, that “conduct that is authorised by clauses 315 to 317, cannot constitute misconduct … or serious misconduct”, or that the relevant legal framework was set by cll 315–317.

It may be inferred that the respondents did not do so because their own primary position before the primary judge was that cl 315 and/or cll 315 and 317 are not capable of being contravened as they involve no enforceable right and, in the alternative, that if there was any such right granted then cl 315 could not be considered in isolation from cl 317 and the Code of Conduct. In other words, on both of the respondents’ cases, cl 317 was in play.

(f)    The Union parties never pleaded or submitted to the primary judge that the University had contravened cl 317. They only alleged contraventions of cll 315 and 384.

137    In substance, therefore, cl 317 was in issue before the primary judge. His Honour’s recourse to the pleadings to identify the matters in issue was “understandable but involved error” (at [182]). Further (at [183]):

In the circumstances of the present case nothing precluded the appellants from putting to the primary judge, as they in fact did, that Dr Anderson was exercising a right of intellectual freedom granted by cl 315 and in accordance with that clause and cl 317. This is because, the appellants having asserted the conduct was the exercise of the right in accordance with cl 315, forensic logic required the respondents to raise cl 317, which they did. The appellants were then permitted to assert, in response, that the conduct complied with cl 317, which they did.

138    Their Honours then came to the issue which had been central to the primary judge’s reasoning, and said (at [187]–[190]):

The primary judge’s construction of cll 315-317 also involved error. The provisions relating to intellectual freedom, cll 315-317 of the 2018 agreement (and cll 254-256 of the 2013 agreement), must be construed together. The statement of the commitment of the parties in cl 315 to protect and promote intellectual freedom is expressed as including specified “rights”. Those specified include the right to engage in public debate (cl 315(a)). The rights include the right to express opinions about the operation of the University (cl 315(b)(ii)) and to express unpopular or controversial views, provided that in doing so they must not engage in harassment, vilification or intimidation (cl 315(b)(iv)). Clause 315 thus does involve a conferral of rights, contrary to the conclusions of the primary judge and the arguments of the University.

It is also the case, however, that those rights cannot be separated from the terms of cll 316 and 317. By cl 316 the parties “will” encourage and support transparency in the pursuit of intellectual freedom within its (that is, the University’s) governing and administrative bodies. The intellectual freedom the subject of cl 316 is the intellectual freedom identified in cl 315. By cl 317 the parties “will” uphold the principle and practice of intellectual freedom in accordance with the highest ethical, professional and legal standards. Again, the intellectual freedom in cl 317 is the intellectual freedom in cl 315. Clauses 315-317 thus embody an integrated and inter-related scheme of enforceable mutual rights and duties, as well as aspirations. The clauses are not merely aspirational and incapable of contravention as the respondents contended below in their primary case.

The fact that minds may reasonably differ about what might constitute “harassment, vilification or intimidation” in cl 315(b)(iv) or upholding the “the principle and practice of intellectual freedom in accordance with the highest ethical, professional and legal standards” in cl 317 does not make the provisions mere exhortations or aspirations. Nor does the fact that the scope of the commitment to intellectual freedom is not precisely defined as the specified rights are merely included within and are not exhaustive of the concept of intellectual freedom. Contrary to the University’s submissions, exhaustive definition is not required to make the provisions capable of enforcement.

The University’s suggestion that cl 315 does not authorise the exercise of the rights nominated is untenable. The concept of the exercise of the rights is inherent within the actions authorised as specified in cl 315(a)-(b)(i)-(iv). It is also inherent within the commitment to the protection and promotion of intellectual freedom in the preamble to cl 315.

139    In dealing with other submissions concerning the alleged changes in the Union parties’ case, their Honours made several points including the following (at [197]–[203]).

The appellants continue to accept (as they expressly did below) part of the alternative argument that the respondents put — that if cl 315 does include a right of intellectual freedom it is a right that is necessarily subject to the terms of cl 317. In putting that alternative argument below the respondents did not suggest to the primary judge that: (a) the appellants could not succeed because they had not pleaded that Dr Anderson had exercised intellectual freedom in accordance with the highest ethical, professional and legal standards as required by cl 317, (b) the appellants could not succeed because they had not adduced evidence that Dr Anderson had exercised intellectual freedom in accordance with the highest ethical, professional and legal standards to satisfy cl 317, or (c) the respondents had been denied the opportunity to call evidence that Dr Anderson had not exercised intellectual freedom in accordance with the highest ethical, professional and legal standards as required by cl 317. This is so despite the fact that in their primary and alternative case the respondents expressly relied on cl 317 to defeat the appellants’ claims.

Second, given the way in which the case was run by both parties before the primary judge (as explained above), it is not the case that in order to succeed the appellants were required to plead that Dr Anderson had exercised intellectual freedom in accordance with the highest ethical, professional and legal standards. The appellants were entitled to do what they did — plead an exercise of the right in accordance with cl 315 and leave it to the University to rely on cl 317, which the University did. The appellants were also entitled also to allege (as they did), in response to the University’s case, that the exercise of the rights did in fact satisfy cl 317.

Third, the appellants put before the primary judge the evidence on which they wished to rely to support the claim that Dr Anderson had been exercising the right of intellectual freedom in accordance with cll 315 and 317 (and the equivalent provisions of the 2013 agreement). The appellants do not suggest otherwise. This is hardly surprising given that, as discussed, both parties relied on cl 317 in the hearing before the primary judge. If the appellants’ evidence is inadequate, then so be it.

Fourth, it is correct that cl 317, having been raised below by both parties, required the primary judge to examine all circumstances relevant to each and every claimed exercise of the right of intellectual freedom.

Fifth, it cannot be the case that the University (or other respondents) could and would have led other evidence about the context and manner in which Dr Anderson had purportedly exercised his right of intellectual freedom. The University’s submissions that there was no evidence about these matters is wrong.

…

It also necessarily follows that there was (and is) no further evidence the University could adduce relevant to the alleged breaches of cll 315 and 384(d)(iii) of the 2018 agreement. This is because the appellants are either right or wrong about this as well as all other aspects of their case.

Clause 384

140    At [207], their Honours analysed the Union parties’ case as having involved the following steps:

(a)    Dr Anderson exercised his right to intellectual freedom in accordance with cll 315 and 317;

(b)    if that was so (a matter of objective fact), his conduct could not be misconduct or serious misconduct;

(c)    it followed that the University could not take disciplinary action against him under cl 384 or at all;

(d)    the University did take disciplinary action against him by giving the warnings and terminating his employment without notice; and

(e)    by reason of these facts the University breached cll 315 and 384 (and thereby s 50 of the FW Act).

141    Their Honours then noted the following points at [211]:

Perhaps most importantly for the scope of the remittal, it must be recognised that a judgment does not involve a series of self-contained and unconnected conclusions. Conclusions about one issue affect conclusions about other issues. In this case, the primary judge believed that his conclusion about the proper construction of cl 315 did not ultimately matter because the appellants had never challenged Professor Garton’s state of satisfaction as the delegate of the University under cl 384. As noted, the primary judge said “[i]f the [appellants] had pleaded a case based on breach of cl 317, the result would not have been any different”: J at [141]. This was in error because the appellants’ case of breach by the University was never confined to breach of cl 384 and, in any event, cl 384(d)(iii) is not conditioned on the delegate’s state of satisfaction (and could not be given cl 434). The separate case(s) about cl 315 (and about there being no lawful right, power or authority to discipline Dr Anderson) identified above also still had to be determined. It is not possible to know what the primary judge would have done had he appreciated that the construction issue mattered.

142    Their Honours’ understanding of how cl 384 operated (and the need for the Court to make findings for itself as to the existence of misconduct, rather than assessing only the reasonableness of Professor Garton’s state of satisfaction) was based in part on cl 434 of the 2018 Agreement, which their Honours discussed at [213]–[215]. Briefly, cl 384 was not the source of a power to terminate a person’s employment; it presupposed the existence of such a power. Termination was expressly provided for in cll 431–435. Normally, notice was required under cl 433. Clause 434 provided that the only lawful basis for termination without notice was serious misconduct (ie the fact of serious misconduct and not a University delegate’s opinion). This explained why cl 384(d)(iii) was worded in the way it was. But for cl 434, the University had no power to terminate Dr Anderson’s employment; yet the clause had not been mentioned to the primary judge.

143    This did not follow in respect of disciplinary action other than termination, because warnings or suspensions were not within the express limitation in cl 384(d)(iii). Thus, as their Honours said at [220]:

The problem with the appellants’ case below was their contention that if they proved Dr Anderson’s conduct was not in fact misconduct or serious misconduct, the University would have breached cl 384 by taking disciplinary action. Given the terms of cl 384(d)(i) and (ii), that proposition cannot be right for any disciplinary action other than termination. The University would have breached cl 315 if the conduct was the exercise of intellectual freedom in accordance with cll 315-317. Further, the University might have breached some implied term of the contract of employment that the University could only take disciplinary action other than by way of termination for misconduct but that case was never pleaded or put below, and should not be permitted to be raised as part of the remittal. However, what cannot be said is that by taking disciplinary action other than termination the University breached cl 384(d)(i) or (ii) provided the University’s delegate reached a reasonable state of satisfaction about the misconduct. To this extent, the primary judge was right to reject the appellants’ case about the warnings involving a breach of cl 384 (as opposed to cl 315).

144    However, having rejected the cl 384 case (in part correctly), the primary judge did not deal with the other grounds on which the warnings and the termination were alleged to have been unlawful. Contrary to his Honour’s analysis, it was not an answer to the whole of the Union parties’ case to say that it was open to the University to be satisfied that there had been misconduct or serious misconduct (at [222]–[225]).

Conclusions and scope of remitter

145    At [226]–[260] their Honours identified and explained eight errors in the reasoning of the primary judge. This part of the reasoning does not need to be summarised here.

146    At [261]–[271] their Honours rejected an argument that the appeal was “moot” because certain findings by the primary judge were not challenged. First, an important point in the appeal was that the primary judge had not made the findings necessary to resolve the appeal because of the erroneous way the case had been framed (at [261]). Secondly, to the extent that relevant findings were made (the only example given being his Honour’s conclusion that the fifth comments did not constitute an exercise of intellectual freedom), such findings could not be taken to be unaffected by error (at [262]–[268]). Their Honours continued (at [269]–[271]):

Accordingly, the primary judge was required to decide, as a matter of objective fact by reference to the evidence of all the relevant circumstances, whether each or any of the instances of Dr Anderson’s impugned conduct (excluding the lunch photo) constituted an exercise of the right of intellectual freedom in accordance with cll 315-317 of the 2018 agreement …. This included consideration of whether the conduct did or did not involve harassment, vilification or intimidation or the upholding of the principle and practice of intellectual freedom in accordance with the highest ethical, professional and legal standards.

If all of the impugned conduct (other than the lunch photo) constituted exercises of the right to intellectual freedom in accordance with cll 315-317 of the 2018 agreement …, then the University had no lawful right, power or authority to give warnings to or terminate Dr Anderson’s employment because of that conduct as it could not be misconduct or serious misconduct in fact authorising warnings or termination. In that event, the appellants’ argument is that the unlawful warnings and termination must have involved the University in breaching the duty on it in cll 315 and 384 of the 2018 agreement … to permit the exercise of the right and thus contravened s 50 of the [FW Act]. If all factual pre-conditions are satisfied, this argument would be correct insofar as termination is concerned. For the warnings, as discussed, the argument would be correct as to breach of cl 315, but incorrect in respect of breach of cl 384.

If the fourth comments and/or the fifth and sixth [sic] comments did not constitute an exercise of intellectual freedom in accordance with cll 315-317 of the 2018 agreement …, then the primary judge would be required to decide, as a matter of objective fact by reference to the evidence of all the relevant circumstances, whether, as pleaded, the fourth comments did not constitute misconduct and the fifth and sixth [sic] comments did not constitute serious misconduct (paras 69(b) and 78(b) of the FASOC). If they did not, the same considerations as set out in the paragraph above relating to cl 384 would apply. These same considerations would also apply if the primary judge decides as a matter of fact that the fourth comments and/or the fifth and sixth [sic] comments merely constituted misconduct as opposed to serious misconduct because the University would be in breach of cl 384(d)(iii) if it terminated Dr Anderson’s employment without notice for anything other than serious misconduct.

147    Their Honours next addressed the issues concerning the lunch photograph, which can be passed over for present purposes.

148    From [285] to [287] their Honours discussed the relevance of identifying the basis upon which the University had terminated Dr Anderson’s employment, making the following observations.

(a)    The University did not plead or argue that, if any one or more of the comments did not constitute serious misconduct, the termination was nevertheless lawful because some subset of the comments themselves justified termination. Nor should it be allowed to put such a case now (at [285]).

(b)    The primary judge should determine the basis upon which the University in fact terminated Dr Anderson’s employment. Correspondence referred to in the judgment suggested that the basis was the fifth comments in the cumulative context set by all of the earlier comments, but other evidence might be relevant (at [286]).

(c)    If the basis for termination included the context set by all of the earlier comments it was arguable that, if any of those earlier comments constituted the exercise of the right in accordance with cll 315–317, the termination therefore miscarried (at [287]).

149    Their Honours concluded at [288] that it was necessary for the appeal to be allowed. At [290], their Honours expressed a preliminary view that the matter should be remitted to the primary judge for further hearing and determination based on the existing evidence, with further submissions addressing certain topics.

FCAFC 2

150    The orders that the Full Court made on 21 October 2021, after considering further submissions from the parties, dealt with the joinder of Professor Jagose and Professor Garton and dismissed the proceedings against the former. The Full Court also remitted the matter to the primary judge for determination according to law and (except in relation to relief and pecuniary penalties) on the basis of the existing evidence. In its short reasons accompanying these orders, the Court described the “current position” as follows (at [9]):

(1)     Professors Garton and Jagose are necessary parties to the appeal and should have been joined from the outset;

(2)     it is agreed between the parties that the claims against Professor Jagose are to be dismissed, the only question being whether this Court or the primary judge should make that order;

(3)     the claims against Professor Garton alleging his accessorial liability for the University’s alleged contravention of s 50 of the [FW Act] as a result of its alleged breach of its obligations under the right of intellectual freedom provisions of the enterprise agreements have not been determined and remain part of the remitted proceeding. All other claims against Professor Garton have been determined against the appellants. As a result, it is not appropriate to dismiss the case as against Professor Garton;

(4)     the claims of contravention of s 340 of the [FW Act] were determined against the appellants in the proceeding below and were not the subject of the appeal and therefore cannot be re-agitated as part of the remitted matter;

(5)     the claims that the University breached [cl 384(d)] in giving the First Warning and Final Warning respectively to Dr Anderson have been determined against the appellants and cannot be re-agitated as part of the remitted matter. This does not mean that the First Warning and Final Warning, and circumstances said to give rise to them, are immaterial to the case of the University having acted in breach of cl 384(d) in terminating Dr Anderson’s employment; and

(6)     the issues of relief/penalties were to be the subject of a subsequent separate hearing below. The principal judgment relates only to liability issues. If liability is determined against the University and Professor Garton, the primary judge may make such orders as he thinks fit in respect of the remaining issues of relief/penalties.

151    The Court broadly endorsed a list of issues drafted by the Union parties (the list of issues), and commented on the University parties’ proposed amendments thereto. However, the Court did not limit the remitter to specific issues and observed that “ultimately, the issues relating to liability are to be determined by reference to all of the material before the primary judge relevant to the cases as put by the parties” (at [13]).

152    Although the list of issues therefore did not have any formal status, it is useful to set it out as it appears in the Full Court’s reasons at [14]. The University’s proposed amendments are shown in markup. (The Full Court saw no reason to delete the observations in italics, noting they “reflect the conclusions in [FCAFC 1]” at [16]. Their Honours otherwise had no concerns with the amendments, with the exception of the proposed removal of the equivalent of cll 316 and 317 from questions 3 and 5. That proposed change suggests an isolated focus on cl 315 that runs counter to the need to read the provisions together, something explained at length in FCAFC 1.)

The intellectual freedom case

Did Dr Anderson exercise engage in intellectual freedom within the meaning of the enterprise agreement?

(1)    Did any one or more instances of the conduct (excluding the Lunch Photo), being the First Comments, Second Comments, Third Comments, Fourth Comments and Fifth Comments constitute the exercise of the right of intellectual freedom in accordance with cll 315-317 of the 2018 agreement or, as applicable, cll 254-256 of the 2013 agreement?

If any instance of impugned conduct (excluding the Lunch Photo) did constitute the exercise of this right, then that conduct could not also be misconduct or serious misconduct. The University had no lawful right, power, or authority to discipline Dr Anderson or terminate Dr Anderson’s employment on that basis either in whole or in part.

First warning

(2)    If the answer to question 1 is “yes” in relation to either, or both, of the First Comments or the Second Comments did the University impose the First Warning on Dr Anderson in whole or in part based on any conduct which constituted the exercise of the right of intellectual freedom in accordance with, cll 254-256 of the 2013 agreement?

(3)    If the answer to question (2) is “yes”, did the respondent breach cll 254-256 of the 2013 agreement and thereby contravene s 50 of the FW Act by imposing the First Warning on Dr Anderson?

If the University did impose the First Warning on that basis (in whole or in part) then the University necessarily did so in breach of its duty in 315 and, thereby, contravened s 50 of the Fair Work Act, enlivening the potential remedies in s 545 (declarations and compensation) and 546 (pecuniary penalties).

Final warning

(4)    If the answer to question 1 is “yes” in relation to any of the First Comments, Second Comments, Third Comments or Fourth Comments did the University impose Final Warning on Dr Anderson in whole or in part based on any conduct which constituted the exercise of the right of intellectual freedom in accordance with, cll 315-317 of the 2018 agreement?

(5)    If the answer to question (4) is “yes”, did the respondent breach cll 315-317 of the 2018 agreement and thereby contravene s 50 of the FW Act by imposing the Final Warning on Dr Anderson?

If the University did impose the First Warning on that basis (in whole or in part) then the University necessarily did so in breach of its duty in 315 and, thereby, contravened s 50 of the Fair Work Act, enlivening the potential remedies in s 54 (declarations and compensation) and 546 (pecuniary penalties).

Termination of employment

(6)    If the answer to question 1 is “yes” in relation to any of the First Comments, Second Comments, Third Comments, Fourth Comments or Fifth Comments, Ddid the University terminate Dr Anderson’s employment in whole or in part based on any conduct which constituted the exercise of the right of intellectual freedom in accordance with cll 315-317 of the 2018 agreement or, as applicable, cll 254-256 of the 2013 agreement?

(7)    If the answer to question (6) is “yes”, did the respondent breach cl 315 of the 2018 agreement and thereby contravene s 50 of the FW Act by terminating Dr Anderson’s employment?

If the University did terminate Dr Anderson’s employment on that basis (in whole or in part) then the University necessarily did so in breach of its duties in cll 384(d)(iii) and 315 and, thereby, contravened s 50 of the Fair Work Act, enlivening the potential remedies in s 545 (declarations, reinstatement, and compensation) and s 546 (pecuniary penalties).

If the answer to question 6 is “no”, it is necessary to answer the following questions:

The Serious Misconduct Case

(8)    What was the sSerious mMisconduct on which the University relied to terminate Dr Anderson’s employment? Specifically, did the University terminate Dr Anderson’s employment based on: (a) all the conduct considered cumulatively constituting sSerious mMisconduct, or (b) instances of the conduct constituting sSerious mMisconduct?

It is necessary to answer this question because, given that the University did not plead or argue an alternative basis for the termination being lawful (such as any one or more of the acts of impugned conduct in isolation), the primary judge must decide the basis of the termination.

(9)    Did the sSerious mMisconduct on which the University relied to terminate Dr Anderson’s employment include, in whole or part, the Fourth Comments or the Fifth Comments?

If the answer to this question is “yes”, it is necessary to consider the next question.

If this question is reached after questions (1)-(7) are dealt with and the answer to this question is “no”, the amended originating application must be dismissed because the appellants did not otherwise challenge the fact that the conduct other than the fourth comments and the fifth comments was not, respectively, misconduct at all or serious misconduct.

(10)    If the answer to question (9) is “yes”, did the conduct relied on by the University constitute sSerious mMisconduct?

If the answer to this question is “yes”, the termination of Dr Anderson’s employment was lawful. If this question is reached after questions (1)-(7) are dealt with and the amended originating application must be dismissed.

If the answer to this question is “no” the University had no lawful right, power or authority to terminate Dr Anderson’s employment on that basis either in whole or in part. Termination of Dr Anderson’s employment on that basis, in whole or part, would mean the University breached cl 384(d)(iii) and, thereby, s 50 of the Fair Work Act, enlivening the potential remedies in s 545 (reinstatement and compensation).

(11)    If the answer to question (10) is “no”, did the respondent breach cl 384 of the 2018 agreement and by terminating Dr Anderson’s employment?

The case on remitter

153    No party sought to amend its pleading when the matter was remitted, even though the plurality had adverted to this possibility in FCAFC 1 at [23]. The Union parties and the University parties filed written outlines of submissions. The Union parties adopted the list of issues as the basis for their written submissions. The University parties did not. Arguments concerning the way the case had been pleaded and run at the trial did not end.

The Union parties

154    The written submissions of the Union parties referred at several points to cll 315–317 of the 2018 Agreement as a single set of provisions (including references to the “exercise of the right of intellectual freedom in accordance with cll 315-317”) but did not grapple with the content of cl 317 as a separate topic. In seeking to analyse each of the relevant comments, the submissions asserted that the comments constituted the exercise of intellectual freedom “within the meaning of” cl 315, and explained why that was so, but did not say anything concerning whether the freedom had been exercised within limits imposed by cl 317. Although the issues were framed (consistently with the list of issues proposed in FCAFC 2 and quoted above) in terms of whether the University had breached cll 315–317, answers were proposed in terms that referred only to cl 315.

155    In oral submissions, senior counsel for the Union parties put that there was in effect no argument now available to the University parties concerning cl 317, in the light of how the case had run first time round and of what had been said in FCAFC 1. The following exchanges occurred:

MR WALKER: - - - it follows intellectually that your Honour will be satisfied with these episodes of conduct qualify for section 315 protection.

HIS HONOUR: Yes. Yes, but – so theoretically, it could be run now by the university that the exercise of intellectual freedom was not done to the standard required by section 317 - - -

MR WALKER: No.

…

HIS HONOUR: Okay. Well, that – okay. That’s the first question, and the second is, assuming that’s available, though, the university hasn’t identified - - -

MR WALKER: That’s right.

HIS HONOUR: - - - in any of its submissions any standard - - -

MR WALKER: That’s right.

HIS HONOUR: - - - to which you haven’t – to which Dr Anderson, I should say, has not lived up to in any event.

MR WALKER: That it follows from the way in which we succeeded on the 315 interpretive argument in the Full Court, but 317 always travels with 315.

HIS HONOUR: Right.

MR WALKER: And so it follows that a considerably earlier stage in these proceedings, we now know the Full Court has now held that the university could have pleaded in a sufficiently particular fashion allegations about deficiencies in meeting the section 317 requirement on Dr Anderson’s part because 317 applies to the university as well, but we never raised any allegation under 317 against the university. If the university – sorry, and let me interpolate to get it over and done with. In terms of pleadings, as your Honour knows, the Full Court painstakingly, with respect, visited the forensic history to determine the argument between my friend and me in the Full Court about what was open to us on appeal, and we get, for present purposes, from that in a distilled fashion that, though we could have, we didn’t plead 317, and we didn’t have to. Pleading 315 was enough to attract, ultimately, the section 50, section 545 route to success that we ..... to. As well, the university had raised 317 but had not then and does now [sic] plead 317, let alone in any sufficiently particular fashion to enable an identification of standards, deficiencies in meeting which may have cast adverse light on a reliance on 315 by us.

…

Now, all of that is, we think, common ground as to the theory of those provisions, but we submit that it’s very plain from the analysis of the issues open to be litigated below, to be litigated on appeal and now for remitter. It’s plain that there is no identification of a standard, so-called, let alone the invidious requirement for your Honour to distinguish between the highest and the not so high standards, whatever that means. We’re spared all of that.

HIS HONOUR: Yes.

MR WALKER: And, in particular, of course, that is why their Honours had in mind that there would be no further evidence. There was not to be a forensic broadening of the inquiry. To take and emphasise an anticipatory Suttor v Gundowda point – it’s only anticipatory by making it clear, of course, had there been such a case pleaded and particularised at trial, the evidence would have been different, but particularly, the evidence of Dr Anderson, which is pretty comprehensive anyhow – but had there been targets, they would have been the subject of specific attention and no doubt would also have been a subject in turn of cross-examination. None of that having happened, we’re really not in a position to be going into that area at all.

The University parties

156    In their written outline, the University parties made a general point that the rights in cll 315 and 316 operated “in conjunction with cl 317, which sets out the responsibilities imposed on the Parties” (referring to the Full Court reasons at [256]). They then observed (at [38]):

The Applicants did not plead any breach by the University of its obligations under cl 317. By contrast, the Respondents’ case contends failures by Dr Anderson in relation to his obligations under cl 317, which are relevant to determining the alleged breaches by the University of cl 315.

157    The first of these propositions was true but, with respect, irrelevant in the light of what the Full Court had said at [128]–[129] and [154]–[155] (extracted above at [131] and [134]). The second proposition can be understood as contending that some or all of Dr Anderson’s comments were not insulated from being characterised as “misconduct” or “serious misconduct” because they failed to meet requirements in cl 317. How and why they failed was, in the light of what the Full Court had said, critical to the resolution of the case.

158    The written outline addressed the phrase “highest ethical, professional and legal standards” and the context in which it was to be understood at [39]–[44]. At [45]–[48] reference was made to some of Professor Garton’s evidence on his understanding of the concept (for what reason is unclear), and the reasons of the High Court in Ridd v James Cook University [2021] HCA 32; 274 CLR 495 (Ridd) were cited at [49].

159    In relation to each of the comments by Dr Anderson, it was submitted (inter alia) that the comments were not made in accordance with the highest ethical, professional and legal standards. This was put as a function of “the content of the comments themselves” (at [61], [70], [78]), as well as Dr Anderson having misrepresented the University’s conduct and not complied with a direction (at [70]) and some comments being directed at an individual journalist (at [78]). In one case the deficiency was simply asserted (at [99]).

160    At the hearing of the remitter, the following exchanges occurred:

MS EASTMAN: 317 makes it clear that the clause is directed not only to upholding the principle, but directed to the practice of intellectual freedom. And in that context, the practice has to be in accordance with the highest ethical, professional or legal standards. What is put against us is because there was no pleading relying on 317 as if it was a defence or a claim against Dr Anderson’s assertion of 315, therefore, there can be no reliance on that. We don’t agree with that proposition. Secondly, it’s put against us that we haven’t identified the highest ethical, professional or legal standards. It is not put against us that we haven’t identified that by reference to any evidence or facts.

And as your Honour will recall from reading the Full Court’s reasons, the Full Court did not address the content of what is meant by the highest ethical, professional or legal standards. The Full Court’s observations with respect to what the highest ethical or legal standards may mean was addressed, but only in passing. His Honour the Chief Justice said that the code of conduct could be relevant to informing the content of the highest ethical and professional standards. The majority said that the highest ethical standards cannot require sensitivity, a voiding [sic] offence or not being discourteous. That’s paragraph 243.

…

HIS HONOUR: But isn’t all of this moot? I mean, your written submissions don’t identify any standard which wasn’t met. So, I mean, unless you take me to – unless you say “this is what we say the standard is and this is how it was breached”, this is all moot.

MS EASTMAN: Well, if – with respect, it’s not, your Honour. If one looks at each of the letters that Professor Garton delivered to Dr Anderson with respect to his findings in relation to the making of the first warning, the final warning and the termination, in all of those letters he makes reference to departure from professional standards.

HIS HONOUR: Where do I find in your written submissions the identification of a standard or a submission that Dr Anderson departed from it?

MS EASTMAN: We haven’t set out in detail in our written submissions - - -

HIS HONOUR: No, no. But whether it’s in detail or not, where is it?

MS EASTMAN: I will just check this ..... your Honour. We have at paragraph 38 and 39 of our submissions addressed those matters.

HIS HONOUR: So am I understanding you correctly that you say that Dr Anderson did not meet the standard in 317? Is that what your submission is?

MS EASTMAN: Our case is, stepping it through, with respect to each of the comments as pleaded that they do not, in the first instance, engage 315, be it reliance on 315(a), 315(b)(iv), and we understand those to be the provisions relied on. I think, though, the submissions - - -

HIS HONOUR: Sorry. Do you or do you not submit that Dr Anderson departed from the standard referred to in 317?

MS EASTMAN: That – if – yes, we do say that, your Honour.

HIS HONOUR: And what is the standard, and in what way did he not live up to that standard?

MS EASTMAN: I’m happy to go through each of them separately, your Honour.

HIS HONOUR: Well, you [sic] going to have to because you have not in your written submissions identified either the standard that you are referring to or the departure from it. So unless you make some submission about it – and I don't know whether Mr Walker is able to deal with it, but unless you tell me what the standard is that you say wasn’t lived up to, then how am I going to determine a case on that basis?

MS EASTMAN: Well, your Honour, taking a step back, the question is, what do the highest ethical professional or legal standard mean in the context of 317 read with 315? Those words should be given their ordinary meaning. It doesn’t need to go to look to a code of conduct or any particular document to inform them.

HIS HONOUR: So in what way do you say Dr Anderson didn’t meet that standard, and what do you say the standard is?

MS EASTMAN: If we say the highest ethical standards apply in their ordinary meaning, is to look at ethical standards to act honestly, to not mislead and to - - -

HIS HONOUR: So you say that Dr Anderson was dishonest and misleading? Is that your case?

MS EASTMAN: No, I don’t say that for all of them, but for some instances – let me give you an example. For - - -

…

HIS HONOUR: Where do I find any of this in the pleading?

…

HIS HONOUR: Or in your written submissions, for that matter. I mean, I have to say these submissions – you had plenty of time to file written submissions, and nowhere have you identified, with respect, the standard you say or the departure, and now for the first time you say that Dr Anderson was dishonest,

MS EASTMAN: No, I’m not saying that to your Honour.

HIS HONOUR: Well – okay. What are you saying?

MS EASTMAN: I’m not saying that. I’m starting with giving meaning to the expressions “ethical”, “professional” and “legal standards”.

HIS HONOUR: All right.

MS EASTMAN: Right.

HIS HONOUR: And is this addressed in your written submissions?

MS EASTMAN: No, it’s not.

HIS HONOUR: Okay. Why not? If this was your case, why is that not addressed in your written submissions?

MS EASTMAN: Well, I – your Honour, I will move on then.

161    The issue was not addressed further. This left the primary judge without any detailed explanation from the University parties as to what the “highest ethical, professional and legal standards” meant in cl 317 and the way in which Dr Anderson’s comments (if they comprised exercises of intellectual freedom) fell short of those standards.

FCA 2: the judgment on remitter

162    Having referred to various matters of background, the primary judge considered each of the comments made by Dr Anderson. In each instance, in the light of relevant passages in FCAFC 1, his Honour concluded that the comments constituted an exercise of intellectual freedom within the meaning of cl 315. His Honour completed the discussion of each comment by saying that the University had not “established any breach by Dr Anderson of a standard which might engage” cl 317 (at [23], [30], [38], [49], [53]).

163    Because the first and second comments constituted the exercise of intellectual freedom, the first warning (which was imposed in part because of those comments) contravened cl 315 and thus also s 50 of the FW Act (at [56]).

164    Because the fourth comments constituted the exercise of intellectual freedom, the final warning (which was imposed in part because of those comments and the first warning) also contravened cl 315 and s 50 of the FW Act (at [59]–[61]).

165    The termination decision took into account the fifth comments as well as the first and final warnings. The termination was therefore imposed in part because Dr Anderson had exercised his right to intellectual freedom. The termination decision therefore also contravened s 50 of the FW Act (at [66]–[67]). The termination decision also proceeded on the basis that Dr Anderson had engaged in “serious misconduct” in making the fifth comments, which (because they constituted an exercise of intellectual freedom) were not capable of amounting to serious misconduct. It therefore contravened cl 384 of the 2018 Agreement and, on that basis also, contravened s 50.

FCA 3 and FCA 4: Orders consequent upon FCA 2

166    On 22 November 2022 the primary judge made seven declarations and set the matter down for further case management. The declarations relevant to the University were:

1. By, on 2 August 2017, imposing a first warning on Dr Anderson for reasons including the making of comments by Dr Anderson that constituted the exercise of intellectual freedom within the meaning of cl 254 of the [2013 Agreement], the first respondent failed to comply with cl 254 of the 2013 Agreement, and thereby contravened s 50 of the [FW Act].

3. By, on 19 October 2018, imposing a final warning on Dr Anderson for reasons including the making of comments by Dr Anderson that constituted the exercise of intellectual freedom within the meaning of cl 315 of the [2018 Agreement], the first respondent failed to comply with cl 315 of the 2018 Agreement, and thereby contravened s 50 of the FW Act.

5. By, on 11 February 2019, dismissing Dr Anderson from his employment for reasons including the making of comments by Dr Anderson that constituted the exercise of intellectual freedom within the meaning of cl 315 of the 2018 Agreement, the first respondent failed to comply with cl 315 of the 2018 Agreement, and thereby contravened s 50 of the FW Act.

7. By, on 11 February 2019, dismissing Dr Anderson from his employment for reasons including the making of comments by Dr Anderson that constituted the exercise of intellectual freedom within the meaning of cl 315 of the 2018 Agreement, the first respondent failed to comply with cl 384 of the 2018 Agreement, and thereby contravened s 50 of the FW Act.

167    On 5 June 2023 (FCA 4), his Honour:

(a)    made an order requiring reinstatement of Dr Anderson and various consequential orders relating to leave entitlements and superannuation (the reinstatement order) (which his Honour stayed pending resolution of this appeal and the appeal brought by Professor Garton); and

(b)    dismissed the claims for pecuniary penalties and damages.

the present appeal

168    The University’s amended notice of appeal raises the following grounds.

(a)    Ground 1: The primary judge erred by proceeding on the basis that the University bore an onus to establish a breach by Dr Anderson of a standard contained in cl 315 or 317.

(b)    Ground 2: The primary judge erred by failing to find that the termination did not contravene s 50 of the FW Act, because Dr Anderson committed serious misconduct by repeatedly disobeying lawful directions.

(c)    Ground 3: The primary judge erred by failing to give adequate reasons for rejecting certain submissions advanced by the University.

(d)    Grounds 4 and 5: Certain reasoning of the primary judge, while consistent with FCAFC 1, was inconsistent with reasoning of the High Court in Ridd.

(e)    Ground 6: By reason of one or more of the above grounds, the primary judge erred:

(i)    in concluding that the first and second comments constituted the exercise of intellectual freedom and could not amount to misconduct or serious misconduct;

(ii)    in not concluding, in relation to the second comments, that intellectual freedom did not entitle Dr Anderson to disobey a lawful direction;

(iii)    in concluding that the fourth comments constituted the exercise of intellectual freedom and could not amount to misconduct or serious misconduct;

(iv)    in not concluding, in relation to the fourth comments, that intellectual freedom did not entitle Dr Anderson to disobey a lawful direction;

(v)    in concluding that the fifth comments constituted the exercise of intellectual freedom and could not amount to misconduct or serious misconduct;

(vi)    in not concluding, in relation to the fifth comments, that intellectual freedom did not entitle Dr Anderson to disobey a lawful direction;

(vii)    in concluding that the termination was imposed in part because Dr Anderson had exercised his right to intellectual freedom;

(viii)    in concluding that Dr Anderson had not committed serious misconduct;

(ix)    in not concluding that Dr Garton was reasonably satisfied that Dr Anderson had committed serious misconduct and the University was entitled to terminate his employment on that basis; and

(x)    in concluding that the termination breached cl 315 and thus s 50 of the FW Act.

169    During the hearing of the appeal, an application to amend so as to add two further grounds arose in the following way.

(a)    Senior counsel for the appellant submitted that, if we were to find that the fifth comments constituted serious misconduct (on the basis that, if nothing else, those comments were a deliberate defiance of a lawful direction), but Dr Anderson was nevertheless wrongly terminated (because the termination decision took into account earlier warnings that contravened cl 315), we should set aside the reinstatement order on the basis that the primary judge’s exercise of the discretion in FCA 4 was founded on legal error and therefore miscarried.

(b)    Senior counsel for the respondents contended that this amounted to a House v The King (1936) 55 CLR 499 attack on the reinstatement order, which was not contemplated in the amended notice of appeal, and, in any event, that a House error would not exist in the circumstances outlined above. In effect, termination is either lawful or not. If the termination was unlawful for some but not all of the reasons identified by the primary judge, that does not undermine his Honour’s exercise of the discretion to order reinstatement.

170    The appellant sought leave to file a Further Amended Notice of Appeal (PFANA), which was handed up during the hearing, to ensure that these issues were formally raised. It contains additional grounds 7 and 8. Ground 7 contends that the reinstatement order should be set aside if the declarations made against the University in FCA 3 are set aside. Ground 8 contends that, if declaration 7 in FCA 3 (which concerns non-compliance with cl 384) is set aside, the discretion to order reinstatement miscarried; and that, in this event, this Court should re-exercise the discretion and set the reinstatement order aside. The respondents did not consent to leave being granted.

171    Although I consider that the PFANA should be accepted for filing, it is not necessary to canvas my reasons in any detail because, for reasons set out below, the conditions for success of either ground 7 or ground 8 do not arise.

172    Grounds 4 and 5 were put only formally and not canvassed in argument. They do not need to be addressed further.

173    My reasons will address the following issues.

(1)    The onus point (ground 1):

(a)    Is it open to the University to raise the issue of the onus of proof in relation to cl 317?

(b)    Did the primary judge err by proceeding on the basis that the University parties bore the onus?

(2)    Did the primary judge give adequate reasons (ground 3)?

(3)    What findings should have been made on issues concerning whether Dr Anderson’s comments constituted exercises of intellectual freedom (ground 6)?

(4)    Should the appeal be allowed on the basis that Dr Anderson committed “serious misconduct” by disobeying lawful directions (ground 2)?

(5)    What orders should be made as a consequence of my conclusions on issues 1 to 4?

Preliminary: Ridd

174    The judgment of the High Court in Ridd was delivered on 13 October 2021, around six weeks after FCAFC 1. I have noted above that two grounds of appeal, which allege inconsistency between aspects of FCAFC 1 and Ridd, were advanced only formally in this appeal. I have not found it necessary to address the reasoning in Ridd in any detail, for two reasons. One is that, as will emerge below, the resolution of the appeal turns in large part on the way the parties ran their cases below. The other is that (as Ridd makes plain at [19]–[22]), the scope of intellectual freedom for the purposes of a case under s 50 of the FW Act necessarily depends on the terms of the applicable Enterprise Agreement. General understandings of intellectual freedom and its importance are useful to the extent that they shed light on the language that the parties to the Enterprise Agreement have actually used. The relevant provisions in Ridd (which are set out at [13]–[15]) were structured quite differently from the relevant provisions in the present case.

Issue 1: the onus point

Can the point be raised in the appeal?

175    The University submits that the burden of establishing a contravention of s 50 of the FW Act rested at all times on the Union parties, and required them to prove any fact that was an “essential element” in their cause of action. The Union parties’ case rested on the central proposition that Dr Anderson’s conduct was not capable of constituting “misconduct” or “serious misconduct”—and therefore did not provide a lawful basis for disciplinary action—to the extent that it constituted exercises of intellectual freedom within cl 315. One of the main lessons to be drawn from FCAFC 1 was that cll 315 and 317 must be read together, so that Dr Anderson’s comments amounted to exercises of “intellectual freedom” in the relevant sense only to the extent that they satisfied the requirements of cl 317. Thus, the argument ran, it was a matter for Dr Anderson to prove that his comments accorded with the “highest ethical, professional and legal standards”. The primary judge had misplaced the onus in finding that each of the comments constituted an exercise of intellectual freedom on the footing that the University had not “established any breach by Dr Anderson” of standards in cl 317.

176    The Union parties submit that it is not open to the University to advance this argument. They point to the following aspects of the long history of the proceeding:

(a)    The University’s defence included bare denials and did not invoke cl 317.

(b)    The University’s primary case, which the primary judge accepted but the Full Court did not, was that cl 315 was not capable of being contravened.

(c)    The University’s alternative case at the first hearing was that cl 315 did not confer an immunity “from a finding of a breach of the Code of Conduct or a finding of Misconduct or Serious Misconduct”. Clause 317 was cited in aid of that argument.

(d)    The Full Court in FCAFC 1 held that the Code of Conduct could not reduce the content of cl 315 (at [15]).

(e)    The Full Court, so it was said, “identified, in terms, that the University had made no allegations about an undischarged onus arising in connection with cl 317”. Reference was made to FCAFC 1 at [198], which is quoted in full at [139] above. This is not what [198] says. It is true, however, that the plurality drew attention at [197] to the fact that the University parties had not submitted that “the appellants could not succeed because they had not adduced evidence that Dr Anderson had exercised intellectual freedom in accordance with the highest ethical, professional and legal standards to satisfy cl 317”.

(f)    According to the plurality in the Full Court (at [198]), the Union parties were entitled to do (by way of pleading) what they did: plead an exercise of the right in accordance with cl 315 and leave it to the University to raise cl 317.

(g)    The Chief Justice flagged for the parties the possibility of amending their pleadings to “accommodate matters not currently pleaded” without reopening the hearing to more substantive evidence (at [23]). This was ultimately considered unnecessary: FCAFC 2 at [6].

(h)    On remitter, the University described its case as one which “contends failures by Dr Anderson in relation to his obligations under cl 317”.

(i)    The argument concerning cl 317 was, in effect, not developed by senior counsel for the University.

(j)    The University did not seek to meet the Union parties’ argument (that its case at first instance had been run by reference only to the Code of Conduct) by submitting that it was the Union parties who bore the onus.

177    The onus argument raised by ground 1 was thus said to be novel. It was also “untethered from the pleadings”.

178    The Union parties’ reference to the pleadings does not advance matters, in the light of the extensive discussion in FCAFC 1 of the pleadings and how the case had been run. The plurality noted the failure of both sides to plead cl 317 expressly but did not suggest that any issue was foreclosed to either side as a result. As the plurality explained, as a matter of forensic logic it was for the University parties to raise cl 317, and they had done so (albeit not by way of pleading); so that the effect of the clause was in play at the trial. The decision of the Full Court that the remitted hearing should take place on the existing evidence was obviously premised on a conclusion that the parties had had the opportunity to adduce whatever evidence they wanted to concerning, inter alia, the operation of cl 317.

179    Nor, in my view, did the University parties confine themselves to the Code of Conduct when submitting that Dr Anderson had not complied with cl 317. The alternative case as outlined in their opening written submissions (and summarised above at [119]) was, with respect, somewhat difficult to pin down and may not have provided much assistance to the primary judge. However, I do not read it as having been limited in the way now contended for.

180    Once issue was joined between the parties as to whether those of Dr Anderson’s comments which were said to constitute exercises of intellectual freedom had been made in accordance with cl 317, there obviously arose a possibility that the primary judge’s determination of that issue would depend on which side bore the onus in relation to it. Absent some concession or preliminary ruling on where the onus lay, it was clearly a topic on which his Honour might in due course need to be addressed. Neither side could complain about having to meet, in closing, a submission that it bore the onus of proof and had not satisfied it.

181    I do not read the reference in FCAFC 1 at [197], to the University parties not having submitted that the Union parties must fail because no evidence had been adduced that Dr Anderson had exercised intellectual freedom in accordance with the highest ethical, professional and legal standards, as recording a concession by the University parties that they bore the onus of proof as to compliance with cl 317. This observation only records silence; it does not suggest that the University parties actually said anything amounting to a concession of this kind. The observation formed part of a section of the plurality’s reasons (at [196]–[205]) dealing with an assertion that the Union parties’ case had changed, so that it should not be taken to record in a definitive way what the University parties’ case had been. Other aspects of the narrative are consistent with the onus of proof in relation to cl 317 lying on the Union parties, or at least being open for debate. For example (adding emphasis to parts of the plurality’s reasons extracted at [139] above):

(a)    “The appellants continue to accept (as they expressly did below) part of the alternative argument that the respondents put — that if cl 315 does include a right of intellectual freedom it is a right that is necessarily subject to the terms of cl 317.”

(b)    “The appellants were entitled to do what they did — plead an exercise of the right in accordance with cl 315 and leave it to the University to rely on cl 317, which the University did. The appellants were also entitled also to allege (as they did), in response to the University’s case, that the exercise of the rights did in fact satisfy cl 317.”

(c)    “[The] appellants put before the primary judge the evidence on which they wished to rely to support the claim that Dr Anderson had been exercising the right of intellectual freedom in accordance with cll 315 and 317 (and the equivalent provisions of the 2013 agreement). The appellants do not suggest otherwise.”

(d)    “[The] appellants are either right or wrong that … Dr Anderson’s impugned conduct involved an exercise of the right to intellectual freedom in accordance with cll 315 and 317”.

182    Accordingly, if the University parties had advanced the onus point as a distinct argument before the primary judge on remitter, I do not think it would have been open to the Union parties to complain that that was inconsistent with the way the case had been pleaded or opened. The point was an aspect of the issues that were agitated before his Honour, and the University parties had not given it away.

183    One of many perplexing aspects of the case is that, even on remitter, the parties do not appear to have given the primary judge any assistance on the question of who bore the onus of proof in relation to compliance with cl 317. The University parties did not submit, in terms, that the Union parties bore any onus. However, this is far from the first case in which an unsuccessful party has articulated its position on appeal in terms of the relevant onus having been reversed with the topic not having been debated at first instance. As I have sought to explain, the question of onus was integral to the issues that the primary judge had to decide (whether the parties addressed it or not) and had not been conceded. Where all parties have had the opportunity to put on all the evidence they wish to at the trial, there is no unfairness in an issue being raised on appeal as to whether the primary judge correctly allocated the onus when assessing that evidence.

The onus of proof in relation to compliance with cl 317

184    It is not in doubt that the burden of establishing a contravention of s 50 of the FW Act rested at all times on the Union parties: eg Fair Work Ombudsman v National Union of Workers [2019] FCA 1826, [31] (Kerr J). The relevant requirement of s 50 was that a person “must not contravene a term of an enterprise agreement”. Section 50 thus gave legal force to the requirements imposed by the 2018 Agreement, with “penal consequences” for their breach (Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; 222 FCR 152, [89] (Jessup, Tracey and Perram JJ) (Marmara)). The Union parties alleged a breach of cl 315 of the 2018 Agreement by the University and undertook the task of proving that breach.

185    As a matter of statutory construction, the allocation of onus in respect of a particular question depends on whether the matter in question is part of the total statement of the relevant obligation or is in the nature of an excuse or justification, a question which is to be approached as a matter of substance. This proposition was recently affirmed by Jackson J in Australian Pesticides and Veterinary Medicines Authority v Arnica Pty Ltd (No 2) [2022] FCA 815; 293 FCR 533 at [88], referring to Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88 at 119 (McHugh J) and to the well known statement of the High Court in Vines v Djordjevitch (1955) 91 CLR 512 at 519–520 (Dixon CJ, McTiernan, Webb, Fullagar and Kitto JJ) as follows:

When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter.

(Citations omitted.)

186    Because the relevant clauses of the 2018 Agreement create legal rights enforceable in the present case by dint of being picked up and applied by s 50, it is appropriate to apply these principles of statutory construction in deciding where the onus lay in respect of cl 317.

187    It will be recalled that the Union parties’ primary case has always been that the comments made by Dr Anderson could not constitute “misconduct” or “serious misconduct”, and did not provide a lawful basis for the action taken against him, because they constituted exercises of intellectual freedom of the kind protected by cl 315. This was the case ultimately accepted by the primary judge in FCA 2 at [56]–[57], [60]–[62], [67] and [68]. It was on this basis that the imposition of sanctions by the University was held to have contravened cll 315 and 384 of the 2018 Agreement and therefore contravened s 50 of the FW Act.

188    However, although the nature of the case being advanced needs to be kept in mind, I do not think the proper understanding of the onus flows (as the Union parties’ submissions appear to suggest) from the course of pleadings. While it was sufficient for the Union parties to plead cl 315 and leave it to the University parties to raise cl 317, once that had been done it was necessary for the Union parties at least to assert that cl 317 had been complied with. Hence, the plurality in FCAFC 1 at [40] observed that the Union parties had “accepted that cl 315 could not be construed in isolation from cl 317 and had accepted that any exercise of rights under cl 315 had to be in accordance with that clause and cl 317”. The question who bore the burden of persuading the primary judge as to the last of these points turns on analysis of what the Union parties needed to prove in order to succeed on the case thus described—which is a function of the interrelation of relevant provisions of the 2018 Agreement and the FW Act—rather than how the parties in the present case eventually arrived at the framing of the issues.

189    Considered from the perspective of the relevant statutory norm (the requirement in s 50 not to “contravene a term of an enterprise agreement”), application of the principle set out in the cases entails that an “exculpation, justification, excuse, ground of defeasance or exclusion”—as to which the University parties would bear the onus of proof—would be found, if at all, in a provision excluding the application of s 50 to some specific class of case in which a term of an enterprise agreement had been contravened. Clause 317 clearly does not operate at that level of discourse. Its construction and application form part of the analysis of whether a “term of an enterprise agreement” have been “contravened”. On this basis, in order to prove the relevant contravention (so as to expose the University parties to potential orders under s 50), the Union parties needed to prove that Dr Anderson’s comments came within cl 315 as qualified by cl 317; ie that they constituted exercises of intellectual freedom that were carried out “in accordance with the highest ethical, professional and legal standards”.

190    In principle, I think this is the correct way to approach the issue. This is because questions as to onus of proof arise, in a curial setting, by reference to the existence of legal rights and liabilities or the contravention of legal (generally statutory) norms. The allocation of onus should take place by reference to the content of the relevant right or liability or the norm alleged to have been contravened (together with any excuse or justification provided by statute).

191    However, the same conclusion is reached if the question of contravention of a term of the 2018 Agreement is regarded as involving an issue as to whether cl 317, seen in the context of the Agreement, is “part of the total statement of the relevant obligation” or “in the nature of an excuse or justification”. The task of analysis is not simple because, although the case was pleaded and argued as involving a “contravention” of cl 315, that provision does not in its terms create an obligation capable of being breached.

(a)    As construed in FCAFC 1, cl 315 embodies a mutual commitment to intellectual freedom which gives rise to an obligation to uphold that freedom (see [188]). No sanction or other consequence is provided for a failure to do so. Such a failure has direct legal significance, as a “contravention”, only through s 50 (as to which see above). Enterprise agreements, as Rangiah J observed in James Cook University v Ridd [2020] FCAFC 123; 278 FCR 566 at [222], are neither contracts nor statutory instruments having legal force in their own right (see also at [42] (Griffiths and SC Derrington JJ), citing Marmara at [89]).

(b)    The other way in which cl 315 is relevant, of course, is in relation to the lawfulness of the termination. If Dr Anderson’s comments were exercises of intellectual freedom of a kind protected by cl 315, they were not capable of being “serious misconduct”. Termination in the absence of anything objectively amounting to “serious misconduct” was inconsistent with (and can be described as a “contravention” of) cl 384(d)(iii).

192    The plurality in FCAFC 1 regarded cll 315–317 as a set of provisions that should be read as a whole. Thus, for example, at [188] (which has been set out at [138] above) the plurality said of the rights in cl 315:

[Those] rights cannot be separated from the terms of cll 316 and 317. By cl 316 the parties “will” encourage and support transparency in the pursuit of intellectual freedom within its (that is, the University’s) governing and administrative bodies. The intellectual freedom the subject of cl 316 is the intellectual freedom identified in cl 315. By cl 317 the parties “will” uphold the principle and practice of intellectual freedom in accordance with the highest ethical, professional and legal standards. Again, the intellectual freedom in cl 317 is the intellectual freedom in cl 315. Clauses 315-317 thus embody an integrated and inter-related scheme of enforceable mutual rights and duties, as well as aspirations.

193    What flows from this reasoning, for present purposes, is that the intellectual freedom protected by cl 315 is intellectual freedom exercised in accordance with cl 317. Clause 317 is an integral part of the way in which the 2018 Agreement identifies that which is protected. The rule that the University was alleged to have contravened is not stated directly in cl 315, but arises as the corollary of the protection it affords. Clause 317, meanwhile, is not framed so as to provide an exemption from or exoneration in respect of any rule of conduct. Rather, there can be no “contravention” of cl 315, by way of imposing adverse consequences upon a staff member for having exercised their intellectual freedom, unless that exercise accorded with cl 317. Correspondingly, cl 317 plays a role in giving content to cl 384(d)(iii) by forming part of the set of provisions that identify what constitutes an exercise of intellectual freedom (and therefore does not constitute “serious misconduct”).

194    For these reasons, understood within the four corners of the 2018 Agreement, compliance with cl 317 was part of what the Union parties needed to prove in order to establish that Dr Anderson’s comments came within the protected area of intellectual freedom under cl 315; which, in turn, was a critical step in establishing the asserted contraventions on the part of the University.

195    Accordingly, whether the issue is approached from the perspective of the relevant statutory norm (s 50) or through the provisions of the 2018 Agreement, the correct view is that the Union parties bore the onus of proving that the comments complied with cl 317.

196    An important qualification needs to be made to this conclusion. The phrase “highest professional, ethical and legal standards” is capable of encompassing a wide range of considerations. The Union parties could not be expected to anticipate, and lead evidence to answer, every criticism that might be made of Dr Anderson’s comments by reference to this standard. They could not do much more than adduce evidence from Dr Anderson concerning his bona fides and the foundation of the comments in his academic work (which they did) and then respond in reply to whatever criticisms the University parties made. As the plurality observed in FCAFC 1 at [228], as a matter of forensic logic it was up to the University parties to raise cl 317. Notwithstanding that the Union parties bore the onus, therefore, fairness required the University parties to join issue in some way on any aspect of compliance with cl 317 to which evidence (other than the comments themselves) might be relevant.

197    Like the other members of the Court, I have found this issue difficult as well as determinative. I have come to the view that this consideration limits the nature of the arguments that could properly be raised and considered in the first appeal, and on remitter (with the Full Court having determined that the remitted hearing should proceed on the existing evidence). For example, it would not have been open to the University parties to complain that the Union parties did not prove at trial that Dr Anderson’s comments had a proper basis in the findings of his research. For this reason, while I have concluded above that the onus point can be raised in the appeal, the utility of doing so is affected by the course that the proceedings have taken.

Did the primary judge misplace the onus?

198    In relation to each of the comments, the primary judge in FCA 2 first considered whether the comments constituted “the exercise of intellectual freedom” and concluded that they did. The statement following that conclusion was substantially identical in each instance. The discussion of the first comments, at [23], serves as an example:

In making the comments, Dr Anderson did not engage in harassment, vilification or intimidation. Nor has the University established any breach by Dr Anderson of a standard which might engage cl 256 of the 2013 Agreement (cl 317 of the 2018 Agreement).

199    The first sentence of this extract reflects the qualification in cl 315(b)(iv) on the right to express “unpopular views”. The second sentence comprises the whole of the discussion of cl 317.

200    It is useful to situate this reasoning in the context of the arguments of the parties on the remitter, which are summarised above at [153]–[161]. The Union parties’ argument involved, in effect, two steps:

(a)    having raised cl 317 (which, according to FCAFC 1, the Union parties did not need to do), it was necessary for the University parties to articulate with particularity why Dr Anderson’s comments did not comply with that clause; and

(b)    it was too late, on remitter and with no provision for further evidence, for the University parties to attempt that articulation.

201    The primary judge’s observation recorded in the transcript that the issue appeared to be “moot” reflected the influence of this argument. Significantly, the argument that was put was not that as a matter of legal analysis the University parties bore the onus of proof in relation to compliance with cl 317. It was that, having not joined issue on the point in any coherent way at the trial, it was not open to the University parties to mount what would effectively be new arguments in a hearing on remitter which included no opportunity for further evidence. The argument was at least consistent with the legal onus being on the Union parties, in that it relied on the unfairness of points being taken in relation to cl 317 which had not been raised, and could potentially have been the subject of evidence, at the trial.

202    The University parties, meanwhile, had submitted in writing that Dr Anderson’s comments did not meet the standard in cl 317 but without articulating in detail why this was so. At the hearing, the primary judge made it clear that he would need each departure from the standard in cl 317 to be explained. Senior counsel for the University parties did not make any progress in that endeavour (save for alluding to and then disavowing a suggestion of dishonesty) before giving up on the point.

203    The primary judge’s resolution of the issues concerning cl 317 needs to be understood in the light of these submissions. Reading his Honour’s observations that the University parties had not “established any breach by Dr Anderson of a standard which might engage” cl 317 in this context, I do not understand his Honour to have decided the issue on the basis of an understanding that the University parties bore the onus of proof. This would have involved deciding an aspect of the case on a basis that was not argued. His Honour should be understood to be referring to the failure of the University parties to raise properly, or articulate in submissions, an argument as to how Dr Anderson’s comments fell short of the standards required by cl 317.

204    Read in this way, his Honour’s disposition of the cl 317 issue in relation to each of the comments was not erroneous. Having not raised cl 317 in its pleadings or articulated ways in which Dr Anderson had fallen short of the relevant standard before the close of evidence, the University parties were at the very least constrained in the arguments they could properly make on remitter. At the hearing on remitter, they did not seriously attempt to articulate those arguments.

Conclusions on ground 1

205    Ground 1 is not made out.

206    An additional observation arising from what I have said above is that the arguments that have been articulated in the present appeal concerning compliance with cl 317 are new arguments raised on appeal. To the extent that they might have been the subject of further evidence, it is clear that they cannot be allowed: Coulton v Holcombe (1986) 162 CLR 1 at 7–8 (Gibbs CJ, Wilson, Brennan and Dawson JJ). More broadly, including in relation to any arguments as to which further evidence would have been irrelevant (which may be the case in respect of arguments proceeding solely from the terms of the comments themselves), it is not “expedient and in the interests of justice” (see, eg, Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [16]–[19] (Heerey, Moore and Goldberg JJ) and the cases cited there) for these to be entertained for the first time in this appeal. Not only was issue not joined on these points in the trial (nor any application made in the first appeal for leave to raise arguments concerning cl 317, nor any attempt to expand the remitter so as to allow re-opening), but the points were in substance abandoned at the hearing on remitter.

Issue 2: reasons

207    Ground 3 alleges that the primary judge did not give any or any adequate reasons for rejecting various submissions advanced by the University parties. These were:

(a)    that the first comments were intemperate personal attacks that could not reasonably be characterised as within cl 315(a) and were not made in accordance with the highest ethical, professional and legal standards (cf cl 317);

(b)    that the second comments (i) constituted a breach of a lawful direction and (ii) were not made in accordance with the highest ethical, professional and legal standards (cf cl 317), including because they misrepresented the University’s conduct;

(c)    that the fourth comments were a deliberate breach of a direction that was not suggested to be unreasonable or unlawful; were simply an attack on a journalist and not about Dr Anderson’s research; and were not made in accordance with the highest ethical, professional and legal standards (cf cl 317); and

(d)    that the fifth comments did not constitute an exercise of intellectual freedom because they were a deliberate and provocative defiance of a lawful direction to Dr Anderson that he take steps to disassociate the material from the University.

Clause 317

208    In so far as these arguments invoked cl 317, all that the primary judge said about them was that the University had not established a breach of any relevant standard. However, this was adequate as a response to the University’s arguments in the light of the course that the litigation had taken. As I have sought to explain above, to the extent that any scope remained for the University to advance arguments in relation to cl 317, it had pressed those arguments faintly if at all.

209    The other submissions, and his Honour’s reasoning in relation to them, were as follows:

First comments: intemperate personal attacks

210    His Honour recorded this submission at FCA 2 [19] and noted that it relied on FCA 1 at [160(1)]. His Honour then referred to observations by the plurality in FCAFC 1 at [187] and [266(2)] which he regarded as suggesting a broader construction of cl 315(a). He concluded (at [23]):

In my view, the First Comments constituted the exercise of intellectual freedom. Dr Anderson was engaged in public debate. The comments were made in the context of his work and public comment on his work and were related to his work. Even on the narrower construction of cl 254, the comments are sufficiently connected with Dr Anderson’s research as to amount to “dissemination of the outcomes of research … in public debate”.

211    This was not inadequate as an explanation of why the University’s submission was rejected.

Second comments: breach of a lawful direction

212    His Honour dealt with the second comments in FCA 2 at [24]–[31]. This passage does not engage directly with the submission that the comments constituted a breach of a lawful direction. However, his Honour treated as determinative the following observations in FCAFC 1 at [266]:

[I]f: (a) an exercise of intellectual freedom in accordance with cll 315 and 317 cannot be misconduct at all (which is the case), and (b) posting the PowerPoint presentation initially was an exercise of that right in accordance with cll 315 and 317 (an issue of fact the Court must determine for itself on the remittal), then:

(1)     Dr Anderson would be acting lawfully in wanting to “express his view that he had a right to post material of that kind if he wished” and would be right to insist he had the right to do so “without censure”. His self-described “assertion of my intellectual freedom” would be lawful. …;

(2)     …; and

(3)     if Dr Anderson intended the re-posting of the PowerPoint presentation to be “an assertion of an unfettered right to exercise what he considered to be intellectual freedom” and was being “deliberately provocative” in conveying that Dr Anderson “could post such material if he wanted and the University had no right or entitlement to prevent him from doing so”, he would have been correct and entitled to make that point to the University by the reposting of the material.

213    His Honour did not go behind this reasoning, but it was not his task to do so. Its clear import is that, if there is an exercise of intellectual freedom within cll 315–317, the protection provided by cl 315 overrides any direction by the University. Quoting and applying this passage was sufficient as an explanation of why the submission (that the second comments were not protected as an exercise of “intellectual freedom” because they were made in defiance of a lawful direction) was not accepted.

Fourth comments: breach of a direction; not about Dr Anderson’s research

214    His Honour set out the submission of the Union parties as follows (at FCA 2 [37]):

The Fourth Comments were the exercise of intellectual freedom in cl 315 of the 2018 Agreement because:

(a)     one of the rights conferred on Dr Anderson by cl 315 of the 2018 Agreement was the right to engage in public debate;

(b)     Dr Anderson was engaging in public debate; and

(c)     that public debate was initiated by the media and was, in part, about Dr Anderson and his work; and

(d)     the subject matter of the public debate was within Dr Anderson’s areas of research and teaching; and

(e)     Dr Anderson engaged in the public debate for the purposes described above, and no challenge was made to that evidence.

215    This was expressly accepted at [38], with the observations that Dr Anderson had not engaged in harassment, vilification or intimidation and:

Even on the narrower construction of [cl 315], the comments are sufficiently connected with Dr Anderson’s research as to amount to “dissemination of the outcomes of research … in public debate”.

216    There was no express engagement with the argument that the fourth comments were made in breach of a lawful direction; however, his Honour can be taken to have regarded that point as going nowhere in the light of the passage from FCAFC 1 that he quoted in connection with the second comments. His Honour addressed, briefly but in my view adequately, the submission that the fourth comments were not about Dr Anderson’s research.

Fifth comments: defiance of a lawful direction

217    The primary judge dealt with the third and fifth comments together and at some length. In relation to the particular submission that is relevant here, his Honour again set out [266] of FCAFC 1 (which I have quoted at [212] above) and said a little more than he had done in respect of the second comments. He observed, at [53]:

Given that (a) and (b) in the chapeau of [266] are both satisfied, it necessarily follows that the conclusions of the plurality in (1), (2) and (3) are applicable and that Dr Anderson was acting lawfully when he re-posted the Gaza Graphic as a means of asserting his right to intellectual freedom. The University did not establish any breach by Dr Anderson of a standard which might engage cl 317 of the 2018 Agreement.

218    This was sufficient as an explanation of why the submission was rejected.

Conclusions on ground 3

219    Ground 3 is not made out.

Issue 3: findings that should have been made

220    Ground 6 alleges errors of mixed law and fact in respect of several conclusions reached in FCA 2. The errors are said to have occurred “including by reason of” one or more of grounds 1 to 5. Grounds 1 and 3 have been rejected above, ground 2 is addressed and rejected below commencing at [252] and grounds 4 and 5 were only put formally. However, I understand ground 6 not to be limited to identifying errors consequent upon those alleged in the other grounds.

221    The written submissions of the Union parties on ground 6 (as well as ground 3) were limited to an argument that these grounds could not succeed because the University parties had failed to put cl 317 in issue. That is a partial answer to ground 6 (in that several of the points that it raises relate to cl 317), but not a complete one.

The first comments and the second comments

222    The following conclusions are alleged to be erroneous by ground 6(a):

Further, including by reason of one or more of grounds 1 - 5 above, the primary judge erred, as a matter of mixed law and fact, in the following respects:

(a)    in respect of the "First Comments" and the "Second Comments" (J [23], [27], [30], [31], [56] and [57]), the primary judge erred in concluding that:

i.     they could not amount to Misconduct or Serious Misconduct;

ii.     they each constituted the exercise of intellectual freedom;

iii.     the "First Comments" were "responsible" as a dissemination of the outcomes of research in public debate (cl 315(a) of the 2018 Agreement), or constituted the practice of intellectual freedom in accordance with the highest ethical, professional and legal standards (cl 317 of the 2018 Agreement), including because they were intemperate personal attacks on journalists, and because of their content;

iv.     the "Second Comments" were "responsible" as a dissemination of the outcomes of research in public debate (cl 315(a) of the 2018 Agreement), or constituted the practice of intellectual freedom in accordance with the highest ethical, professional and legal standards (cl 317 of the 2018 Agreement), including having regard to the content of the comments, because Dr Anderson misrepresented the University's conduct, and because Dr Anderson in making them breached a lawful confidentiality direction;

v.     the "First Warning" was imposed in part because Dr Anderson exercised his right to intellectual freedom;

vi.     the "First Warning" was imposed in breach of cl 254 of the 2013Agreement, and that the University thereby contravened s 50 of the FW Act;

(b)    in respect of the "Second Comments", the primary judge erred in concluding that they were an exercise of intellectual freedom because intellectual freedom did not entitle Dr Anderson to disobey a lawful direction to maintain the confidentiality of the disciplinary process; ...

223    The core of these complaints is in sub-paras (a)(iii) and (iv), which challenge the conclusions that each set of comments was:

(a)    “responsible”, for the purposes of cl 315(a); and

(b)    in accordance with the “highest ethical, professional and legal standards” for the purposes of cl 317.

224    The conclusions that each set of comments constituted the exercise of intellectual freedom, that they could not amount to misconduct or serious misconduct, and that the first warning was imposed in part because Dr Anderson had exercised his intellectual freedom (and thus contravened s 50) are then said to have been erroneous because of error in these core conclusions. I do not understand the University to submit that the comments fell outside cl 315 for other reasons.

“Responsible”?

225    In FCA 2, the primary judge rejected an argument that the first comments were not sufficiently connected with Dr Anderson’s research to amount to the “dissemination of outcomes of research … in public debate” (at [23]). There was no separate consideration of whether the comments were “responsible”.

226    The written submissions of the University parties on remitter had said, in relation to the first comments:

The Respondents submit that the Court should find that the First Comments were intemperate personal attacks on journalists or other comments which cannot reasonably be characterised as Dr Anderson responsibly disseminating the outcomes of his research by engaging in public debate under cl 254(a), including because there was no relevant public debate.

227    This paragraph rolled several ideas together and made it rather unclear whether “responsibly” was being put forward as a distinct criterion which the comments did not satisfy. It had not been identified as a distinct criterion earlier in pleadings or the University parties’ written opening. When senior counsel for the University parties commenced an oral submission that there was work for the term “responsible” in cl 315 to do, there was an immediate objection by senior counsel for the Union parties that this was an attempt to expand the case. The argument was not developed. It was not erroneous for the primary judge to proceed on the basis that it was not pressed. The University should not be permitted to revive the argument here.

228    In any event, the argument must fail for textual reasons. Clause 315(a) includes within the concept of “intellectual freedom” the rights of academic staff:

to engage in the free and responsible pursuit of all aspects of knowledge and culture through independent research, and to the dissemination of the outcomes of research in discussion, in teaching, as publications and creative works and in public debate.

(Emphasis added.)

229    Here I have italicised certain words in an attempt to emphasise the structure of the paragraph. It protects the rights of academic staff to do two things: (i) engage in the pursuit of knowledge and culture; and (ii) disseminate the outcomes of research. The word “responsible” qualifies the first of these but not the second. It was clearly the second of these activities (the dissemination of outcomes of his research), if anything, that Dr Anderson was engaged upon in making the comments. Once the primary judge concluded that the comments were sufficiently connected to Dr Anderson’s work to be regarded as the dissemination of research outcomes (a conclusion which drew upon reasoning in FCAFC 1 and is not challenged by this ground), it must follow that they were within the terms of cl 315(a) (noting the breadth of the terms “discussion”, “publications” and “public debate”). Control over the manner of that dissemination was provided by cl 315(b)(iv) (with its exclusion of harassment, vilification or intimidation) and cl 317.

Clause 317

230    I have concluded above that it is not open to the University to raise issues in this appeal concerning compliance with cl 317.

The second comments: breach of a lawful direction?

231    The second comments involved republication of part of the first comments, together with brief commentary on the letter Dr Anderson had received from Professor Jagose (including that the University had “threatened to sack” him and was seeking to “gag” him). To the extent that the first comments were reproduced, that was done only briefly and by way of background to the issue to which Dr Anderson was seeking to draw attention; namely, what he described as a threat by the University to sack him and an attempt to gag him.

232    The argument that the comments were not protected by cl 315 because they involved breach or defiance of a lawful direction given to Dr Anderson appears, at least at first blush, inconsistent with what was said in FCAFC 1 at [266], which I have set out above at [212]. That appears to have been the primary judge’s understanding at FCA 2 at [28]–[30] (in relation to the second comments) and [52]–[53] (in relation to the fifth comments). In the oral submissions of the University this reasoning was identified as obiter and criticised as leaving out of account the existence of a lawful and reasonable direction as a factor in the analysis.

233    What was said in FCAFC 1 at [266] was part of the Full Court’s explanation of why the Union parties’ case in the appeal was not rendered “moot” by the failure directly to challenge certain findings by the primary judge. The short answer to that argument, articulated by the plurality at [261], was that the findings which the primary judge did make were irrelevant to the main thrust of the appeal, which was his Honour’s failure to make findings that were necessary to resolve the case. The plurality then turned to the example that the University parties had given of relevant findings having been made, and explained at [262]–[266] why those findings could not be taken to have been unaffected by the errors identified earlier in the judgment. What is said at [266] can thus be properly classified as obiter dicta.

234    However, it is doubtful that that conclusion assists the University. It might well be said that the discussion at [266] does not form part of what was “necessarily resolved as a step in reaching the determination made” in FCAFC 1 and therefore would not give rise to any estoppel between the parties (see Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 at [22] and cases cited there). However, it does not follow that it is open to the University to re-open a point that was raised by it, argued and decided by a Full Court at an earlier stage in the same litigation. In my view that should not be permitted.

235    The subject being discussed at [262]–[266] was the fifth comments, which involved the second publication of the Gaza graphic (with further commentary). The reasoning expressed in [266] (so far as is relevant to the present issue) appears to be:

(a)    if an exercise of intellectual freedom in accordance with cll 315 and 317 cannot be misconduct; and

(b)    the initial publication of the Gaza graphic was an exercise of that right in accordance with those clauses; then

(c)    Dr Anderson’s expression of the view that he had the right to publish that material—a self-described “assertion of my intellectual freedom”—would also be lawful.

236    Both of the premises noted in sub-paragraphs (a) and (b) above appear to have been important to the conclusion in (c). Their Honours did not refer in this context to (and therefore, I infer, were not relying on) the express conferral by cl 315(b)(ii) of a right to comment on “the operation of the University”. The important point thus appears to be that, if the first publication of the Gaza graphic was protected by cl 315 from being characterised as misconduct, the same was true of the second publication of the same material even if, in context, it amounted to deliberate defiance of the final warning. I do not understand this part of their Honours’ reasoning to require a conclusion that Dr Anderson’s announcement to the world that “University of Sydney threatens to sack me” was necessarily an exercise of intellectual freedom (and therefore incapable of amounting to misconduct) in its own right. That would be a surprising construction of cl 315, given that it would seem to make that clause applicable to any case where a staff member makes a comment about being the subject of investigations or other action under cl 384, and despite the obvious potential for comment about such processes to be harmful to persons who have not consented to such disclosure (eg victims of alleged bullying or harassment).

237    Understood in this way, the reasoning in FCAFC 1 at [266] is, with respect, correct. Conduct that comprises an exercise of intellectual freedom within cll 315–317 cannot be converted into “misconduct” or “serious misconduct” by a direction given by the University, even if the direction is in other respects a lawful one. The reasoning is also applicable to the second comments. This is because the second comments were in effect a republication of part of the first comments, undertaken in order to assert Dr Anderson’s intellectual freedom, and I have found no error in the conclusion that the first comments themselves constituted an exercise of that freedom.

The fourth comments

238    Ground 6(c) and (d) allege the following errors in relation to the fourth comments.

(c)     the primary judge erred in concluding that:

i.     it could not amount to Misconduct or Serious Misconduct

ii.     it constituted the exercise of intellectual freedom;

iii.     it was “responsible” as a dissemination of the outcomes of research in public debate (cl 3159a) of the 2018 Agreement), or constituted the practice of intellectual freedom in accordance with the highest ethical, professional and legal standards (cl 317 of the 2018 Agreement), because they were: derogatory of Bryan Seymour; went beyond the expression of an opinion about the underlying issue; having regard to the content of the comments including the use of the words “ignorance”, “apartheid”, “war”, and “lying”; and because they involved deliberate breach of a direction to remove the “lunch photo”;

iv.     the “Final Warning” was imposed in part because Dr Anderson exercised his right to intellectual freedom;

v.     the “Final Warning” was imposed in breach of cl 254 of the 2013 Agreement and cl 315 of the 2018 Agreement, and that the University thereby contravened s 50 of the FW Act;

(d)     in respect of the “Fourth Comments”, the primary judge erred in concluding that they were the exercise of intellectual freedom insofar as intellectual freedom did not entitle Dr Anderson to disobey a lawful direction to remove the “lunch photo”;

…

239    The core of the complaints is in sub-paras (c)(iii) and (iv) and (d), which take issue with the conclusions that the comments were:

(a)    an exercise of intellectual freedom;

(b)    “responsible”, for the purposes of cl 315(a); and

(c)    in accordance with the “highest ethical, professional and legal standards” for the purposes of cl 317.

240    The fourth comments, it will be recalled, consisted of a statement published on Facebook and Twitter (with a link to the news item to which the statement was a response) as follows:

Colonial media promotes ignorance, apartheid and war. Channel 7’s Bryan Seymour accuses Indian Australian student of “racism” for siding with #Yemen and other Arab states against #ApartheidIsrael. Also lies about those in solidarity with #Korea #DPRK

241    The submission that the fourth comments did not comply with cl 317 is not open for reasons explained above at [206].

242    As to the submission that the fourth comments were not “responsible”, I have explained at [228]–[229] above why this argument fails for textual reasons. This argument was put on remitter in a single sentence of the University parties’ written submissions (at [77]). The general proposition that the expression “responsible” had work to do was (as noted above) objected to at the hearing and not developed further, including in relation to the fourth comments.

An exercise of intellectual freedom?

243    The comments were pithily expressed and might be thought to be more in the nature of a political intervention than a serious contribution by an academic to public policy debates. However, these characteristics do not take the comments outside the concept of an exercise of intellectual freedom under cl 315. The comments were connected to Dr Anderson’s areas of research interest and put the news item forward for consideration as an example of the methods and characteristics of “colonial media”. The primary judge’s acceptance of the submission that these comments were an exercise of intellectual freedom (FCA 2 at [38]) has not been shown to be erroneous.

The fifth comments

244    The fifth comments involved a second publication on Facebook and Twitter of the third comments (including the Gaza graphic), accompanied by the comment set out at [94] above.

245    Ground 6(e) and (f) contend as follows.

(e)     in respect of the “Fifth Comments”, the primary judge erred in concluding that:

i.     they could not amount to Misconduct or Serious Misconduct;

ii.     they each constituted the exercise of intellectual freedom;

iii.    they were “responsible” as a dissemination of the outcomes of research in (respectively) teaching and in public debate (cl 315(a) of the 2018 Agreement), and constituted the practice of intellectual freedom in accordance with the highest ethical, professional and legal standards (cl 317 of the 2018 Agreement), because they were a deliberate and provocative defiance of the lawful direction to add a disclaimer in any medium in which the post appears that the presentation is not connected in any way with the University of Sydney and remove any references to the University of Sydney from the relevant posts;

(f)     in respect of the “Fifth Comments”, the primary judge erred in concluding that they were the exercise of intellectual freedom because intellectual freedom did not entitle Dr Anderson to disobey a lawful direction to disaffiliate the material from the University.

246    The University’s contentions thus appear to be:

(a)    the fifth comments were not an exercise of intellectual freedom within the meaning of cl 315 at all (para (e)(ii));

(b)    (alternatively) the fifth comments were not an exercise of intellectual freedom within the meaning of cl 315 because they constituted disobedience of the disaffiliation direction (para (f));

(c)    the fifth comments were not “responsible” because they constituted a “deliberate and provocative defiance” of the disaffiliation direction (para (e)(iii)); and

(d)    the fifth comments were not in accordance with the highest ethical, professional and legal standards because they constituted a “deliberate and provocative defiance” of the disaffiliation direction (para (e)(iii)).

247    The fifth comments included a link to an article by Dr Anderson on the website of the CCHS. He did not include the disclaimers that were sought by the disaffiliation direction. However, according to his evidence, he did remove “University of Sydney” from the “About” details of his Facebook and Twitter accounts. A person viewing his comments on Facebook or Twitter from that time would therefore not have drawn a link between the comments and the University unless they knew from other sources (albeit, potentially including other posts on those platforms) that Dr Anderson worked there. This achieved much of what was seemingly sought to be achieved by the disaffiliation direction, notwithstanding that Dr Anderson’s motive for reposting the Gaza graphic was to assert what he saw as his right to intellectual freedom. Thus, although it might well be said that Dr Anderson was being provocative, that particular quality is not to be seen in his disobedience of the disaffiliation direction (which was real, but not flagrant or performative). The third and fourth contentions in the previous paragraph therefore do not advance matters, quite apart from the conclusions I have expressed above as to the utility and availability of arguments concerning cl 317 and the expression “responsible” in cl 315.

248    As to the second contention (that the fifth comments did not come within cl 315 because they were made in disobedience of the disaffiliation direction), the reasoning of FCAFC 1 at [266], with which I agree (see [237] above), is directly relevant. What follows from that reasoning is that, if the posting of the Gaza graphic amounted to an exercise of intellectual freedom, the re-posting of that material also came within cl 315 even if it was contrary to an otherwise lawful direction.

249    What I have said in the previous paragraph focuses attention on whether the substance of the relevant material (originally published in the course of the third comments) constituted an exercise of intellectual freedom by Dr Anderson. The primary judge recounted the evidence on this issue and relevant observations in FCAFC 1 and concluded as follows (FCA 2 at [48]–[50]):

It was submitted for Dr Anderson, and I accept, that Dr Anderson created the graphic for an academic purpose. Further, and with specific reference to what the plurality of the Full Court has stated at [268], I do not draw an inference “that the superimposition of the swastika over the flag of Israel was a form of racial vilification intended to incite hatred of Jewish people”.

In terms of what the plurality of the Full Court has stated at [267] and [269], whilst I consider that the Third Comments would be offensive to many people, in the context in which the Israeli flag superimposed with the swastika was used, I do not consider that its use involved “harassment, vilification or intimidation”. In this assessment, it is necessary to consider the matter in the context which existed at the time of publication and not by reference to later events, including the escalation in the dispute between Dr Anderson and the University. The University did not establish any breach of any standard which might have engaged cl 317 of the 2018 Agreement.

I accept that the use and publication of the PowerPoint was an exercise of intellectual freedom and that the inclusion of the image on the Gaza Graphic slide did not take it out of the protection of cll 315 or 317 of the 2018 Agreement.

250    The University’s written submissions in the appeal attack this conclusion on the basis that the third comments did not constitute a “responsible” exercise of the right to engage in public debate and were not in accordance with the highest professional standards. The same points were made in the oral submissions in reply, in terms that called for the articulation of a positive case by the Union parties (thereby seeking to bring the onus point to bear as well). These arguments must be rejected for reasons explained above.

Conclusion on ground 6

251    Ground 6 must be rejected.

Issue 4: Serious misconduct by reason of disobeying lawful directions?

252    By ground 2, the University contends that the fifth comments constituted serious misconduct because they involved deliberate defiance of a lawful direction, and the primary judge erred in finding to the contrary. It is then submitted that the declaration that the termination failed to comply with cl 384 should be set aside and that this is sufficient to set aside the order for reinstatement. This is described in the submissions as “a narrower pathway to success on the appeal”.

253    The first step in this argument has already been rejected at [237] above.

254    The remaining steps face difficulties of their own.

(a)    Professor Garton’s conclusion that Dr Anderson’s employment should be terminated was conveyed in a letter dated 3 December 2018. The letter focused principally on the “Further Allegations” which arose from the fifth comments, but termination was proposed “particularly in the context of previous warnings issued on 2 August 2017 and 19 October 2018 in respect of similar conduct”. This was a reference to the first warning and the final warning. Each of those orders was issued as a consequence of comments by Dr Anderson which have been held to constitute exercises of intellectual freedom.

(b)    Professor Garton’s proposed decision was endorsed by the majority of a Review Committee, whose findings Professor Garton accepted. The result (ie the termination) was conveyed by a letter from Professor Garton dated 11 February 2019. That letter records that the majority was satisfied that “serious misconduct occurred”, but the committee’s report has not found its way into the material in the appeal. In any event, it is apparent from the letter that the decision maker was Professor Garton.

(c)    The natural inference is therefore that the decision to terminate Dr Anderson’s employment was influenced to some degree by the first, second, third and fourth comments and the warnings given (in contravention of cl 315) in relation to them. The primary judge made a finding to this effect in FCA 2 at [67]. His Honour’s findings that these comments constituted exercises of intellectual freedom have not been found to be affected by error.

(d)    If (contrary to my reasoning) the fifth comments were capable of being regarded as “serious misconduct” on the basis that they involved deliberate disobedience of the disaffiliation direction, the condition set out in cl 384(d)(iii) (at least if read literally) would be satisfied and the power in cl 434 would be engaged. However, the plurality observed in FCAFC 1 at [286]:

The University did not plead or argue that if any one or more of the comments did not constitute serious misconduct because it involved the exercise of the right to intellectual freedom, then Dr Anderson’s termination was lawful in any event because of any one or more of the comments, in isolation, was serious misconduct justifying the termination in accordance with cl 384(d)(iii).

(e)    Their Honours went on to observe that the University should not be permitted to argue such a position on remitter. They then noted (at [287]) that, if the University terminated Dr Anderson’s employment without notice because of the fifth comments in the cumulative context of the earlier comments (which as I have noted is the natural inference from the existing material),

then it is arguable that, if any of the comments constituted the exercise of the right in accordance with cll 315-317 of the 2018 agreement …, the University’s decision to terminate Dr Anderson’s employment necessarily miscarried because such comments cannot be misconduct or, as required for termination, serious misconduct.

(f)    I agree. If cl 315 confers a form of protection on exercises of intellectual freedom which makes them incapable of constituting “misconduct” or “serious misconduct” as defined, it is at least arguable that, by implication, exercises of the freedom cannot form any part of the foundation for a discretionary decision to terminate employment or impose any other form of disciplinary action.

(g)    I understand this to be the basis on which the primary judge found, in FCA 2 at [67], that the termination involved a breach of cl 315 of the 2018 Agreement and thus a contravention of s 50 of the FW Act. That finding has not been criticised on the basis that no such breach of cl 315 was properly pleaded.

(h)    It may not follow from these matters that there was also a contravention of cl 384. Accordingly, if my reasons above were not correct, further consideration would be required as to whether the last of the declarations made as part of FCA 3 should be set aside. However, there would be no basis to conclude that the termination decision did not involve a contravention of a term of the 2018 Agreement or that (as alleged in grounds 7 and 8) his Honour’s exercise of the discretion to order reinstatement miscarried in any material way.

Issue 5: the orders to be made

255    Issue 5 can be resolved quickly and simply in the light of the conclusions I have reached above. None of the University’s grounds of appeal has been made out. As such, I would order that the appeal be dismissed.

256    The Union parties indicated that they wished to be heard on the question of costs. My orders would therefore provide for any party who wishes to seek an order as to costs to file written submissions and for the other party to respond. If no such submissions were filed then, pursuant to s 570 of the FW Act, there would be no order as to costs.

Associate:

Dated:    17 May 2024