Contracts and the Implied Freedom of Political Communication

AuthorPatrick McCabe
DOI10.1177/0067205X20979754
Publication Date01 Mar 2021
SubjectIn Focus: The Implied Freedom of Political Communication
In Focus: The Implied Freedom of Political Communication
Contracts and the Implied
Freedom of Political
Communication
Patrick McCabe*
Abstract
This article considers the phenomenon of contractually-imposed restraints on political commu-
nication. Such restraints often incidentally arise from broad limits on out-of-hours conduct
imposed by employment contracts or from confidentiality or non-disparagement clauses in deeds
of settlement. It is argued that the implied freedom of political communication has work to do in
relation to at least some categories of such restraints. The various objections to that view are
examined and it is argued those objections are not compelling. The article analyses the question of
how the implied freedom would operate in respect of contracts that impermissibly burden free-
dom of political communication, and suggests that this may be achieved by developing the common
law of contract to accomodate a doctrine similar to the doctrine governing unreasonable
restraints of trade.
I Introduction
Contractual terms may significantly restrain political communication. For example, employment
contracts commonly restrict employees’ ability to disseminate political opinions or information
both at and outside work. Confidentiality or non-disparagement clauses in settlement agreements
restrict communication about disputes even when they have political or governmental significance.
This article argues such contractual terms burden the implied freedom of political communication.
Where those burdens are unjustified, they infringe the freedom.
Lange v Australian Broadcasting Corporation (‘Lange’)
1
established that the common law
must not infringe the freedom. Where it does, it must be developed to accommodate the freedom.
This reasoning ought to apply to the common law of contract just as it applied to the common law
of defamation in Lange. Contract law infringes the freedom. It must be developed by incorporating
* BA, LLB (Hons I) (Adel). Senior Associate, Lieschke & Weatherill Lawyers, Adelaide. An earlier version of this article was
submitted for the Constitutional Rights and Freedoms class offered as part of the Melbourne Law Masters programme.
Thank you to Professor Adrienne Stone for her comments on that earlier version, provided in her capacity as course
co-ordinator. All errors are mine. The author may be contacted at pmccabe@student.unimelb.edu.au.
1. (1997) 189 CLR 520 (‘Lange’).
Federal Law Review
2021, Vol. 49(1) 40–72
ªThe Author(s) 2020
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DOI: 10.1177/0067205X20979754
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a requirement that contractual terms that unreasonably restrain political communication are unen-
forceable, just like the common law already refuses to enforce categories of contractual terms such
as unreasonable restraints of trade. Such a development would ensure the enforceability of rea-
sonable contractual restraints on communication is undisturbed, but also ensure contract law no
longer facilitates the imposition of significant and unreasonable restrictions on Australians’ free-
dom to communicate about important political matters.
II How Contractual Terms May Burden the Freedom of Political
Communication
The first step in determining whether a law infringes the constitutional freedom of political
communication (‘the freedom’) is to determine whether the law ‘burdens’ the freedom.
2
A ‘bur-
den’ on the freedom is any effective limit on someone’s practical capacity to communicate about
political or governmental matters.
3
One may easily imagine many examples of contractual terms
that limit political communication. For simplicity, this article considers only two possible cate-
gories: restrictions on communication in employment contracts, and ‘confidentiality’ and ‘non-
disparagement’ clauses in settlement deeds. Other examples (not here considered) might include
lease agreements that might enable landlords to forbid tenants from displaying political signage
and ‘commercial-in-confidence’ provisions in contracting agreements betwee n the Crown and
private contractors, or contractors and sub-contractors.
4
A Employment Contracts
Employment contracts might burden the freedom in at least four ways.
5
First, a term of the contract
might expressly forbid some type (or all types) of political communication.
Second, the contract might impose some broad obligation, such as not to bring the employer into
disrepute, or to keep certain matters confidential, which incidentally forbids some forms of polit-
ical communication. For example, a 2014 Parliamentary Committee report confirmed that all staff
of private contractors working at the immigration detention centre on Manus Island must sign
2. In this article, when a law is said to ‘infringe’ the freedom, what will consistently be meant is that the relevant law
burdens the freedom in a way that cannot be justified by recourse to the McCloy v New South Wales (2015) 257 CLR 178
(‘McCloy’) test and is therefore unconstitutional. The terminology of ‘infringement’ to describe this concept seems to be
favoured by the current High Court, but its use is not universal. It is important to keep in mind that some laws that burden
the freedom will not infringe it, because the burden will be justified under the McCloy test.
3. Comcare v Banerji (2019) 93 ALJR 900, 912 [29] (Kiefel CJ, Bell, Keane and Nettle JJ) (‘Banerji’); APLA Ltd v Legal
Services Commissioner (NSW) (2005) 224 CLR 322, 351 [28] (Gleeson CJ and Heydon J); Wotton v Queensland (2012)
246 CLR 1, 24 [54] (Heydon J); Monis v The Queen (2013) 249 CLR 92, 142–6 [108]–[122] (Hayne J); Unions NSW v
New South Wales (2013) 252 CLR 530, 555 [40] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); Tajjour v New South
Wales (2014) 254 CLR 508, 578–9 [145]–[146], 582 [155]–[156] (Gageler J).
4. See Tom Brennan, ‘Undertakings of Confidence by the Commonwealth: Are There Limits?’ (1998) 18 Australian
Institute of Administrative Law Forum 8, 15; Nicholas Seddon , Government Contracts: Federal, State and Local
(Federation Press, 6th ed, 2018) 505 [8.39].
5. See generally on this topic, Graeme Orr and Alexandra Wells, ‘Horizontal Censorship? Restriction of Socio-Political
Expression by Employers’ (2020) 32 Australian Journal of Labour Law 290.
McCabe 41
‘restrictive confidentiality agreements’.
6
It seems likely that such agreements would have
restricted some forms of political communication.
Third, the contract might incorporate documents such as workplace policies into the contract of
employment.
7
Such policies may contain similarly broad restrictions. In particular, ‘social media
policies’, which constrain what employees may say even in their private lives on social media, are
now commonplace in workplaces.
8
For instance, in 2015, the social media policy for employees of
a major contractor for immigration detention centres was leaked to the press and caused contro-
versy for its draconian bans on expressions of opinions.
9
Finally, employment contracts may give rise to implied terms of fidelity
10
or confidence,
11
which terms may also incidentally restrain employees from certain political communications.
12
If an employee engages in political communication which allegedly breaches the employment
contract, there may be at least two consequences. First, the employee could be sued for breach of
contract. The remedies sought might include damages and an injunction restraining further
breaches. Second, and perhaps more realistically, the employer may rely on the breach to bring
about the termination of the contract of employment.
13
This will not be relevant for all categories
of employees—casual employees, for example, may be lawfully dismissed by their employer
without any breach of contract having occurred.
14
In recent years, a number of examples of political communication allegedly breaching a con-
tract of employment have arisen. On Anzac Day 2015, Scott McIntyre, an SBS reporter, tweeted
outside of work hours an offensively expressed but political opinion that official war commem-
orations overlook the wrongdoings of Australian soldiers.
15
SBS decided the tweet brought it into
6. Australian Human Rights Commission, Submission to the Senate Legal And Constitutional Affairs References
Committee, Inquiry into the Incident at the Manus Island Detention Centre from 16 February to 18 February 2014
(16 May 2014) 25 [2.29]–[2.30].
7. Mark Irving, The Contract of Employment (LexisNexis Butterworths, 2nd ed, 2019) 393–9 [7.22]–[7.24]. However,
depending on the precise wording of the employment contract in question, it is arguable that often policies thought to be
incorporated into the contract of employment in fact simply constitute directions of the employer to the employee, and
thus must be obeyed only if lawful and reasonable: Westpac Banking Corporation v Wittenberg (2016) 242 FCR 505,
518–30 (Buchanan J).
8. See Asma El Ouirdi et al, ‘Institutional Predictors of the Adoption of Employee Social Media Policies’ (2015) 35(5–6)
Bulletin of Science, Technology & Society 134.
9. Ben Doherty, ‘Transfield Immigration Staff Told They Can Be Fired for Using Facebook’, The Guardian (online), 7
April 2015 https://www.theguardian.com/australia-news/2015/apr/07/transfield-immigration-staff-told-they-can-be-
fired-for-using-facebook>; Michael Bradley, ‘Depths of Detention Centre Secrecy Revealed’, ABC News (online), 10
April 2015 https://www.abc.net.au/news/2015-04-10/bradley-depths-of-detention-centre-secrecy-revealed/63
80698>.
10. Irving (n 7) 518–21 [9.18].
11. Ibid 601–4 [9.102]–[9.105].
12. Equivalent duties also arise in equity. A consideration of the freedom’s application to equity is beyond the scope of this
article. See G J McCarry, ‘The Contract of Employment and Freedom of Speech’ (1981) 9(2) Sydney Law Review 333,
for an enlightening discussion concerning ways that terms implied by law into contracts of employment may constrict
employees’ freedom of speech.
13. Irving (n 7) 800–7 [13.6]–[13.11].
14. That is not to say these employees may be dismissed at will—many such employees will have a statutory right under
the Fair Work Act 2009 (Cth) not to be dismissed unfairly (and potentially other statutory rights too). But that right
involves no question of contract law, so is irrelevant for present purposes.
15. Michaela Wh itbourn, ‘SBS Presenter Sacked over “Ina ppropriate” Anzac Day Tweets’, Syd ney Morning Herald
(Sydney), 27 April 2015, 3; Michael Bodey, ‘Sacked SBS Reporter Scott McIntyre Sues over Anzac Day Tweets’,
42 Federal Law Review 49(1)

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