In response to Right to freedom of speech cannot breach employment contract at http://www.theage.com.au/comment/right-to-freedom-of-speech-cannot-breach-employment-contract-20150430-1mwn9f.html
Dear Ms Triggs
I write in response to your article which was published in the Sydney Morning Herald on Friday 1 May 2015.
As President of our Australian Human Rights Commission, your comments on the Constitutionally Implied Freedom of Political Communication will have weight in the public domain. However, given the errors in your analysis, I am taking the time and trouble to respond to your remarks. I do so for three reasons, in self respect, to correct the record, and in the public interest.
Let us be clear. The Constitutionally Implied Freedom of Political Communication has strict and particular criteria. It is not a ‘right’ as you correctly say, but it provides immunity from adverse action should a person be punished for criticizing government, politicians, or government policy. It is not to be conflated with the US style ‘freedom of speech’ nor even the laws of defamation generally, nor even to the provisions of s18 of the Racial Discrimination Act under which Andrew Bolt was sued and found guilty. Yet, in your analysis, you conflate these separate aspects.
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.
It is a mistake to conflate these very separate and distinct legal frameworks as you do in your article, as it creates confusion, instead of creating clarity.
As you correctly say, the constitutional immunity (although you do not use this word) is designed to permit citizens to engage in our democratic process without fear of adverse repercussion. Were this not to be so, our democratic processes would be wounded, and rendered unreliable.
You cite my case, relying on a journalist’s report, which itself contains errors. That you would be so cavalier about selecting the sources upon which you rely to discuss such an important issue, is to be regretted. For example, you defame me when you repeat the journalist’s claim that that I made “trenchant criticisms of guards at immigration detention centres” This is not correct. I made no criticism of guards. I made criticism of the detention centres per se—and I still do.
Your purpose in citing my case, when discussing the SBS McIntyre case, is to correctly observe that in my case, the court decided that there is no unfettered freedom. You cite the court to say: “even if there be a constitutional right [to freedom of political communication, it does not provide a licence to breach a contract of employment”.
What you are not expected to know, and one of my reasons for writing to you, is that Neville J, before making his judgment, invited the parties to make comment on this very point—whether there may be any legislative fetter on the implied freedom and if so, to what extent and under what conditions.
Both parties responded. I argued that, yes, there may be a legislative fetter on the implied freedom, but that the legislative fetter, so as not to be struck down by the court as invalid, must be “reasonable, adapted and to a legitimate end”.
To my utmost disappointment, and subsequent detriment, Neville J totally ignored these submissions—as if he had not asked for them at all, and as if I or the other party had not made them at all.
I had concluded in my submissions that it cannot be a legitimate end to create a class of persons who may not criticize government as private citizens. Yet, in a an entirely heroic way, in a true enactment of Pontius Pilate, Neville J decided that such a question was for a higher court anyway, thus failing to properly consider the question before him.
The question has never been put to the High Court of Australia for it takes money, courage and time to take such action, and I was in no position to be rendered bankrupt by such legal proceedings. The only correct thing to say, is that the law is not clear—that it has not been tested.
The other error that I think is very misleading for you to make publicly, is your assertion that an employment contract will trump the constitutional immunity—that the ‘water will rise above its source’. Given that the employment contract for public servants derives from the Public Service Act, am I to understand that you are of the view that the Public Service Act is immune from being struck down by the High Court, in the event that an employee’s actions to enter political discourse as a private citizen are to be punished by termination of employment. Neville J was wrong to make this statement, and you are wrong to repeat it.
While in the US one may contract out of the right to freedom of speech, to suggest that this is the case in Australia is misleading. I know of no law that is permitted to rise above the Constitution. While the question of an employment contract vis-à-vis the implied freedom has yet to be heard, it would be wrong to expect that the Public Service Act would not be struck down by the High Court as invalid where it puts the employment contract higher that the constitutional provision.
Indeed, I am truly alarmed at your statement that “In principle, it seems a reasonable constraint on our freedoms that we should abide by the ethics, values and standards of our employers”. It does beg the question: Even where those ethics, values and standards are unconstitutional?
You say that:
“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”.
This is entirely contradictory to the constitutional immunity, for an employment contract cannot rise above the constitutional immunity.
The other error of which I do not expect you to be appraised, arises out of the comments that you make in respect of the allegations against me for ‘outside employment without permission’. You say:
“It did not help Banerji’s case that her tweets occurred while she was working for another employer, without the permission of the Department”.
Evidently, you have relied upon the journalist’s article to make this comment, yet this is a misstatement of the facts, and defamatory. I was not working for another employer. The allegation was ‘thrown in for good measure’ by the author of the complaint against me, as the record shows. The allegation was made on the basis of out-of-date online information about my work in private psychoanalytic practice that I conducted years before my being employed by the department.
That an employer should so defame an employee, in an act of bitter retaliation after an employee makes a legitimate complaint about bullying and harassment in the workplace, and that it should be the employee to suffer detriment, is an act of bastardry, if not a failure of legal process.
While the department’s decision makers were quick to deem me in breach of the Code of Conduct for having done nothing wrong, being in fact, a longtime and staunch supporter of workers rights, they were not so prepared to see that my manager’s conduct was itself in breach of that same code of conduct. You cite the Public Interest Disclosure Act (2013) (Cth) which may be limited in its application. I am not sure if this applied in my circumstances, but there was protection for me under the Public Service Act.
While the Public Service Act provides for an employee to be protected from adverse action should she make a complaint about workplace practices, the decision-makers in the department did not offer such a protection to me, conveniently ignoring that particular provision of the Public Service Act—to my detriment.
You make reference to the fact that Australia does not have a Bill of Rights to protect freedom of speech.
Yet, what is not generally known is that we do have a Bill of Rights which, unlike that of the United States, was adopted by the colonies according to the Doctrine of Reception. In the ACT that 1688 Bill of Rights is on our legislative register as current law. We also have the Human Rights Act 2004, which, among other things, declares that no person should be attacked in her reputation.
It is also not generally known that the 1688 Bill of Rights is the document from which other ‘rights’ bills and conventions, (including that of the US) are drafted. In Australia’s case, we have a special relationship to that 1688 Bill of Rights, for unlike the United States, our very own constitution flows from this 1688 Bill of Rights, rendering a further Right to Free Speech superfluous.
In all, your final conclusion is alarming. You say:
‘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’.
This is an entirely misleading statement which muddies the waters of discussion. The Banerji v Bowles decision does not reflect the law. The decision was seriously flawed as it did not properly consider the submissions before it. Neville J stated that the question was for a higher court, but so far, the question remains to be heard by the High Court.
There exists, whether we like it or not, whether we understand it completely or not, whether people muddy the waters or not, a constitutionally implied freedom of political communication, which provides immunity from adverse action arising out of any citizen’s freedom to criticize government, its politicians, and its policies as a private citizen. Where that perpetrator of adverse action happens to be an employer makes no difference. Whether we criticise anonymously, or in our own names, is irrelevant. Whether we do it at the pub, or on Twitter, is irrelevant.
To have it otherwise, to have your view of things, would be to risk creating a class of persons who are precluded from engaging in the political process.
This is not a “legimate end”. Instead, it is a truly Orwellian prospect.