Freedom of expression at work; Part 2

In a previous blog/post I made the point that the High Court of Australia has recognized that the Australian Constitution implies freedom of political expression, not by conferring private rights upon citizens, but rather by curtailing legislation by the federal and State parliaments which may operate to limit the freedom of political or governmental expression which is implied. The implied freedom also operates in the realm of non-statutory law, for example by its application to the common law of defamation in the State courts in which area the doctrine operates so as to provide protection for  publishers of media from defamation by politicians if the media does not act with malice. But that is another issue.

How does the implied freedom work in Australian fair work law?

Well some of the answers are provided by a Full Federal Court in Chief of the Defence Force v Gaynor [2017] FCA FC41.

The case arose from the dismissal by the ADF of an officer of the Army Reserve  who published a range of personal opinions by  blog published on his private web site and also by Twitter and Facebook. His comments included critical views of gay members of the ADF, that he would not allow homosexual people teach his children, that it was wrong to let members of the ADF march in uniform at the Sydney Mardi Gras, in addition to expressing views critical of Government and ADF policy, including the conflict in Afghanistan and a range of comments relating to the practice of lslam.

Mr Gaynor contended he was making these publications in a personal capacity and not as an “employee” of the Army Reserve or the Australian Defence Force, however there was no dispute that any reader could easily identify that he was an officer in the ADF from his various publications.

He challenged his dismissal by the ADF arguing that constituted a fetter upon the implied constitutional freedom of political communication but ultimately a Full Federal Court dismissed his case and re-affirmed the implied freedom in the Australian Constitution, holding that the freedom of political communication is a limit on the legislative power of the Government, not an expressly created right for individuals which Mr Gaynor could rely upon in his attack about his dismissal. Indeed the court found that Mr Gaynor’s employment was terminated for not complying with the policies and directions of the ADF. In other words the real question was whether the legislation and regulations which permitted his dismissal breached the implied freedom.

A subsequent application by Mr Gaynor for leave to appeal to the High Court was rejected.

The conclusion which is suggested by the foregoing is that the freedom of expression which is to be implied into the Australian constitution will have little impact upon the rights of employers to discipline employees for their conduct, especially since the Fair Work Act is silent about this freedom and therefore cannot be said to be a legislative attempt to impact upon the freedom.

Does this mean that the answer to the question posed is “No”?