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Right to freedom of speech cannot breach employment contract

"Whoever knew Truth put to the worse, in a free and open encounter"?

So asked John Milton in his Areopagitica in 1644, crystallising why freedom of speech is a foundation for modern democracy. However, today's near universal access to social media challenges the idea that freedom of expression ensures truth will be victorious over falsehood. 

The disciplining or sacking of employees whose emails breach industry codes of conduct - most recently of Scott McIntyre, who alleged crimes by the Anzacs - raise the vexed question of the proper constraints on freedom of speech.  Does an employer have the right to sack, demote or otherwise sanction an employee for speech that both breaches its code of conduct and may be substantially inaccurate, in bad faith and deeply hurtful to most Australians?

The Federal Circuit Court has recently provided a categorical answer to this question. In Banerji​ v Bowles(2013), a case similar to the McIntyre sacking, an employee of the Department of Immigration asked the court to stop disciplinary action after she "tweeted" trenchant criticism of the guards at immigration detention centres, and of the Prime Minister and the Minister for Immigration, among others. She argued that her comments are constitutionally protected by her right to freedom of political communication as an indispensable incident of representative government. The Federal Court rejected this view as a flawed understanding of Australian law.

Ask any citizen if they have a right to freedom of speech and they will robustly assert "yes, of course" . However, under Australian law, there is no such formal legal right. While, in practice, everyone is free to say and write whatever they like, this freedom is significantly qualified by exceptions. Prohibitions abound in respect of statements that are libellous or slanderous, in contempt of court, a breach of copyright, obscene or seditious, or that incite mutiny, commission a crime or disclose official secrets.

Unlike all other common law countries, Australia has no bill of rights and few laws to protect the right to freedom of speech. In the absence of express protection under the Australian Constitution, the High Court has recognised an implied right to freedom of political communication as a necessary element of representative democracy. So far so good. But, the right of political communication is not a personal right for citizens. Rather it is a constitutional limit on the legislative powers of Parliament. In short, a right of political communication constrains governments, but it is not the right of an individual citizen.

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In the Banerji case, the Federal Court confirmed the general law that rights are "not unbridled or unfettered". The court was cautious in the extreme, saying that: "even if there be a constitutional right [to freedom of political communication], it does not provide a licence to breach a contract of employment". 

The court concluded that the political comments tweeted while Banerji was employed by the Department of Immigration are not protected by the asserted implied right to freedom of political expression. Influencing the court's decision were provisions of the Public Service Act 1999 to the effect that an employee "must at all times behave in a way that upholds the good reputation of Australia", and must behave honestly and with integrity and avoid any conflict of interest. In addition to the contract of employment are the Australian Public Service Code of Conduct and departmental social media guidelines. It did not help Banerji's case that her tweets occurred while she was working for another employer, without the permission of the Department.

It is probable that the Banerji decision reflects Australian law in the absence of any legislation confirming the common law right to freedom of speech. While we may say what we please, subject to defined prohibitions, a practical, chilling outcome of freedom of speech is that we must suffer the consequences if that speech is also a breach of an employment contract. 

In principle, it seems a reasonable constraint on our freedoms that we should abide by the ethics, values and standards of our employers.  But what if the employer is breaking the law or just plain wrong? Whistleblowers are now protected under the Public Interest Disclosure Act (2013) (Cth). Public officials, government agencies and contracted service providers will be guaranteed anonymity and immunity if they disclose an abuse of public trust, corruption, acts that endanger the environment, or unjust, oppressive or negligent conduct, among other wrongs. However, the act is significantly limited and does not cover judicial conduct, ASIO or ASIS, politicians or the private sector.

Scott McIntyre may not have the benefit of the "whistleblower's" law, but it is at least arguable that to be peremptorily sacked is disproportionate to the reasonable interests of his employer. These are matters of judgment in light of all the circumstances.

The free use of social media - as exemplified by the McIntyre tweets - suggests that it cannot guarantee the triumph of truth over falsehood.

Gillian Triggs is president of the Human Rights Commission.

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