Is there such a thing as freedom of speech in business?

Ramesha Perera
Fri 03 May

When you sign a contract of employment is there a distinct line between the employee and the individual or has this line blurred since the introduction of social media? 

Most institutions strive to uphold the best values of a modern society, but what happens when those values clash with your own— Does an employer have the right to sack, demote or otherwise sanction an employee for speech? 

This is the question Isreal Folau’s case is set to determine ahead of his hearing this weekend. A case that will set a precedent within the Sporting world and could potentially ripple across other industries.  

When Folau posted a quote from the Bible did it constitute hate speech and was it a breech of his contract?  

Rugby Australia's reaction to the post was to issue him with a breach notice, saying that he had "committed a high-level breach" of the professional players' code of conduct. 

"At its core, this is an issue of the responsibilities an employee owes to their employer and the commitments they make to their employer to abide by their employer's policies and procedures and adhere to their employer's values," Chief executive Raelene Castle said. 

"All professional rugby players in Australia are bound by the code of conduct and there is a process in place for any disciplinary matter. 


Image: Womens Agenda

But this has defenders of the right to free speech and freedom of expression up in arms. 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- statements that are libelous 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. Cory Bernardi, introduced a Protected Freedoms Act into the Senate earlier this year but until the bill is passed, express protection under the Australian Constitution is not a personal right for citisens.  

In Banerji v Bowles (2013), 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 stating that "even if there be a constitutional right [to freedom of political communication], it does not provide a license to breach a contract of employment". 

Based on this, the outcome of Folau’s hearing will be solely determined on the details of his contract. His conduct hearing is set for May 4. 

Our advice to you, read the fine print.