Unlike the United States, Australia has no constitutional guarantee of the right to freedom of speech but instead enjoys freedoms by virtue of common law. Such freedoms include freedom of religion, movement, speech and association.
In the absence of such constitutional guarantees, the High Court, in Lange v Australian Broadcasting Corporation, said that ‘everybody is free to do anything subject only to the provisions of the law’, so that one proceeds ‘upon an assumption of freedom of speech’ and turns to the law ‘to discover the established exceptions to it’.[1]
Over the years, the High Court has afforded great weight to this freedom observing that ‘[f]reedom of communication, which of course includes freedom of speech, is properly regarded in our society as a fundamental right’.[2]
Notwithstanding this, and as stated in Lange, when an individual exercises a right that does not accord with another person’s freedoms and/or rights, consequences arise at law.
Similarly, when employees exercise their right to free speech, that does not accord with their employer’s values or workplace policies, the employer may seek to reprimand and discipline those employees as specified in the relevant policies..
An example is Ridd v James Cook University,[3] whereby JCU terminated its employee, Professor Peter Ridd, for misconduct
Professor Ridd argued he was exercising intellectual freedom as recognised under JCU’s Enterprise Agreement and as such, the termination was a contravention under section 50 of the Fair Work Act 2009 (Cth). JCU contended the termination was lawful as Professor Ridd’s conduct in fact breached JCU’s Code of Conduct by criticising climate research, along with denigrating a co-worker and the University.
At first instance, Judge Salvatore Vasta of the Federal Circuit Court found JCU’s decision to terminate Professor Ridd unlawful “because it punished Professor Ridd for conduct that was protected by cl. 14 of the EA”.[4] He held that JCU made a “fundamental error” in its view that clause 14 of its Enterprise Agreement was subordinate to its Code.[5]
JCU appealed this decision. The Full Court of the Federal Court contended that the primary question to be determined was whether “the Enterprise Agreement provided Professor Ridd with the untrammelled right (provided only that he did not harass, vilify, bully or intimidate) to express his opinions in whatever manner he chose, unconstrained by the behavioural standards imposed by the Code of Conduct, with which he was bound to comply”.[6]
Finding that it did not, the Full Court held that the Enterprise Agreement informs “the content of the exercise of intellectual freedom”[7] whereas the Code of Conduct “regulates the manner in which that freedom may be exercised”. [8]
Whilst acknowledging that some of Professor Ridd’s expressions were within the bounds of clause 14, others were notthe Full Court describing such conduct as being “no more than expressions of personal opinion and frustration (unrelated to issues or ideas related to his respective field of competence), and general criticism of JCU or the university sector more broadly (not particular disagreement with university decisions or processes)”. [9]
Justices Stephen Gageler, Michelle Gordon and James Edelman have granted Professor Ridd special leave to appeal the Full Court’s decision to the High Court.
The High Court’s decision will be particularly important for employers, as it will clarify the limits of employers seeking to control contentious issues in the workplace, such as free speech and after hours conduct.
If you as an employer or employee would like further advice on the limits of free speech in the workplace please contact our experienced workplace relations team on 03 9614 7111 or melbourne@nevettford.com.au.
[1] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 564.
[2] Cunliffe v Commonwealth (1994) 182 CLR 272, 363.
[3] [2019] FCCA 997.
[4] Ridd v James Cook University [2019] FCCA 997 at [303(bb)].
[5] Ridd v James Cook University [2019] FCCA 997 at [295].
[6] James Cook University v Ridd [2020] FCAFC 123 at [35]
[7] James Cook University v Ridd [2020] FCAFC 123 at [103]
[8] James Cook University v Ridd [2020] FCAFC 123 at [103]
[9] James Cook University v Ridd [2020] FCAFC 123 at [135]