Abstract

Free speech is not unqualified. it may be constrained reasonably.

Article

Recently, both the English Court of Appeal and then the High Court of Australia made cler the obvious principle that freedom of speech is not unfettered, if that were ever seriously doubted.

Defamation is one plain modification. Abusive and offensive language has been prohibited, as has language offensive to groups on the basis of race or religion. It is an offence to disturb a religious service, such as by shouting language condemnatory of the congregation's beliefs.

This is a balancing of the important right of freedom of relligious and political speech with other equally important considerations.

The Court of Appeal said in the clearest of terms: (4) The right to freedom of expression is not an unqualified right: professional bodies and organisations are entitled to place reasonable and proportionate restrictions on those subject to their professional codes; and, just because a belief is said to be a religious belief, does not give a person subject to professional regulation the right to express such beliefs in any way he or she sees fit.

It is difficult to see any point of distinction in the Court's reference to professional bodies.

In Comcare v Baniji [2019] HCA 23, the High Court held that the implied right of political speechwas not a personal rightin a person but a constitutional limitartion on legislation, and in that respect it was qualifiedby an exception relating to the preservation of the reasonable machinery of government.

Reasonable curtailment of a publlic servant's publication of material in conflict with the welfare of the addministration of the service to which he/she is given access is justified.  It would render the efficient administration virtually impossible if it were vulnerable to the wide publication of criticism of its work by one who had the opportunity of internal involvement, particularly if the publication reeflected the personal judgment of the publisher.

Tha individual's t judgment may well be grossly flawed as representing a particular point of view which was grossly flawed.  It might also be seriously deprived of all the important considerations behind the course taken by the service. Judgmental criticism manifests an unfortunate pride in the validity of one's own judgment. Integrity in the behavious ot public servants is essential to its proper working.

The same might be said of reasonable terms of employment contracts. The owner of a coffee shop might not be inhibited by anyprinciple of free speech from dismissing an employee who persisted in shouting out  remarks which might well be offensive to some who might be customers. A fortiori,if he/she were to exhibit the message on a large signin a public place nearby.

It would hardly be justification of the employee that he/she had a strong religious belief that coffee drinkers were drug addicts.

Perhaps, any restraint must be reasonable and relevant, but the employer's business efficiency and welfare and the scope of the mischief of the employee's behaviour appear to be relevant. Revelation of confidential matters to which the employee is given access, and the possible misrepresentation bf the revelation by the media could also be so classified.

It isdifficult to see any juridical basis forthe assertion of a right to express religious or political viewsin a manner contrary to the termsof a contract.  In law there is no such inherent right as between parties that would overreach their ordinary right to make the law, as between them, as they agree.  And there would seem to be no sound basis for the suggestion that it would be contrary to public policy.

In its decision,the HighCourt found that freedom of speech under the constitution is not unqualified and that spasses no further upon the implied freedom than is reasonably justified spasses no further upon the implied freedom than is reasonably justified the constraint in that case was reasonable.

In that judgment, there was a constitutional issue because legislation was involved. If the parties are merely in a contractual relationship, there will be no issue of the validity of legislation on constitutional grounds. Within certain limits there is at law a freedom to contract, and a party who relies on any freedom of speech would at least be required to show that the contractual clog was contrary to public policy. That onus should be no lighter than the onus of showing unconstitutionality.