La Trobe University has now retreated from acting against academic Roz Ward (as I suggest below that it should). However I concluded it was still worth publishing this post, because it analyses important constitutional and legal issues that arise repeatedly in cases where an employer seeks to discipline a worker for expression of political opinion on social media.
Social media communications can cost participants their jobs. The most recent to discover this the hard way is Roz Ward, a humanities academic from Melbourne’s La Trobe University and co-founder of the Safe Schools Coalition program, which seeks to educate secondary school students about LGBTI issues. As New Matilda’s Chris Graham recounts:
Last week, under a photograph of the gay and lesbian flag flying above Victorian parliament, Ms Ward joked with a friend on Facebook: “Now we just need to get rid of the racist Australian flag on top of state parliament and get a red one up there and my work is done.”
The ‘red’ is a reference to the Marxist flag – in addition to her work with Safe Schools, Ms Ward is a prominent figure in Melbourne’s Marxist political movement.
The post was leaked to The Australian newspaper, which began a campaign last week to remove Ms Ward from her position with Safe Schools Victoria Coalition, which is funded by the Victorian government and auspiced by LaTrobe.
By early this week, former Liberal Victorian Premier Jeff Kennett – the Chairman of charity beyondblue, which has been a major funder of LaTrobe – had joined the attacks, telling media that if Ms Ward remained in her role with Safe Schools, he would personally argue against any further funding to the university’s Australian Research Centre in Sex, Health and Society, which administers the Safe Schools program on behalf of LaTrobe.
Despite this seemingly flagrant breach of traditional academic freedoms, not to mention the fact that the offending communication was conveyed in a private Facebook setting (and then leaked by one of Ward’s “friends”), La Trobe to date has not retreated from its suspension decision and Ward’s union is threatening imminent legal proceedings:
Colin Long, the Victorian Division Secretary of the National Tertiary Education Union (NTEU), told New Matilda his organisation was demanding Ward be reinstated immediately, that allegations of “serious misconduct” be dropped, and that the University apologise. If it failed to do so, he said the NTEU would take the case to the Federal Court on Monday at midday.
Long did not identify the exact areas of the law the Union would lodge the case in relation to, but said it would be based both on protections under the Fair Work Act, the University’s collective agreement – which contains a clause relating to intellectual freedom – and broader protections “around freedom of political expression”. He said such a case may go beyond workplace law.
Without knowing all the surrounding facts, it seems to me that La Trobe management would be well advised to back off, not only for obvious ethical and industrial relations reasons but because in my preliminary assessment it would be quite likely to lose any such proceedings.
Nevertheless, the law in this area is surprisingly unclear. That is partly because many if not most cases of this sort end up settling, usually on terms not to be disclosed. The quoted comments by NTEU Secretary Colin Long appear to indicate that Ward is considering commencing proceedings under section 351 of the Fair Work Act, which relevantly provides:
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Former SBS sports reporter Scott McIntyre sued after he was sacked by his employer last year following intervention by then Communications Minister Malcolm Turnbull. McIntyre had publishing tweets on Anzac Day which included: “Wonder if the poorly-read, largely white, nationalist drinkers and gamblers pause today to consider the horror that all mankind suffered” and: “Remembering the summary execution, widespread rape and theft committed by these ‘brave’ Anzacs in Egypt, Palestine and Japan”.
The reason for this was a realisation by McIntyre’s solicitors that his general protections claim was ‘doomed to fail’ by virtue of the exempting operation of section 351(2)(a) of the FW Act. Under this provision, discrimination on the basis of any of the grounds set out in section 351(1) is not adverse action, where it is ‘not unlawful under any anti-discrimination law in force in the place where the action is taken’. Under the anti-discrimination laws applying in New South Wales, where McIntyre’s dismissal took place, discrimination on the basis of political opinion is not unlawful. Relevantly, the Anti-Discrimination Act 1977 (NSW) and the Australian Human Rights Commission Act 1986 (Cth) do not protect an employee against discrimination on the basis of political opinion.
McIntyre then substituted unlawful termination proceedings under section 773 . As the Corrs article explains:
If the matter proceeds to hearing and determination, it will shed light on the scope of protection against dismissal on the basis of political opinion under section 772(1)(f) of the FW Act, which will have implications for similar protections under the general protections provisions and anti-discrimination laws.
SBS appears to have argued that McIntyre was guilty of serious misconduct justifying summary dismissal, having breached SBS’s employee Code of Conduct and Social Media Guidelines. However it appears that they weren’t alleging that the “offensive” tweets themselves constituted the serious misconduct. SBS’s argument was a bit more subtle than that:
SBS says sports reporter Scott McIntyre was not sacked because of his controversial opinions about Anzac Day but because he refused to delete a series of inflammatory tweets and publicly apologise.
The broadcaster also denies McIntyre was terminated at the direction of Malcolm Turnbull, who was the Communications Minister at the time of the tweets on April 25 this year.
In a hearing in the Federal Court on Thursday, Arthur Moses SC, for SBS, said McIntyre was not sacked because of the political views he held, but because the tweets were in breach of the broadcaster’s social media policy and code of conduct.
Whether that argument would have succeeded is unknown, because the proceedings were then settled on terms not to be disclosed.
Roz Ward isn’t currently in a position to sue for unlawful termination because La Trobe hasn’t yet sacked her. Fortunately however, unlike Scott McIntyre she can pursue general protections proceedings under section 351. Unlike New South Wales (where McIntyre lived and worked), Victoria’s anti-discrimination legislation does make discrimination on the basis of political opinion unlawful and so the exempting provision in section 351(2)(a) doesn’t apply. See section 6(k) of the Equal Opportunity Act (Vic).
At least on first appraisal, Ward’s chances of success look quite strong. La Trobe won’t be able to engage in the sort of legal sophistry that SBS deployed against McIntyre i.e. that she isn’t being disciplined for her political opinions as such but rather for refusing to delete material from the Internet or apologise. It is difficult to see how she could be so required in relation to a private Facebook posting that she was perfectly entitled to make. Nevertheless it appears that she has deleted her Facebook account in any event.
La Trobe’s purported reasons for disciplining Ward (usefully outlined in this excellent post by Monash University’s Sarah Joseph) also appear somewhat unlikely to be sustained. It is difficult to see, for example, how any conduct by Ward “[d]amages the reputation of the Safe Schools program and aligns the Safe Schools program with views which have nothing to do with the program and its message and content.” Not only were Ward’s comments undeniably expressions of political opinion, but she published them in a private Facebook post. She clearly did not intend that they be made public nor could she reasonably have anticipated that a “friend” would leak them to News Corporation. The conduct which gave rise to the damaging consequences La Trobe asserts as its basis for disciplinary action was conduct of the leaker “friend” and of News Corporation, for which Ward could not reasonably be held responsible.
Constitutional freedom of political communication
The other potentially fascinating aspect of the mooted court challenge by the NTEU/Roz Ward is Colin Long’s suggestion that the union would pursue “broader protections “around freedom of political expression”. He said such a case may go beyond workplace law.” It appears that a challenge raising the constitutional issue of implied freedom of political communication is being considered.
As with the general protection and unlawful termination provisions relating to political opinion, it is unclear whether and in what manner the implied freedom applies to employment disputes. As Sarah Joseph explains in a 2013 article about well-known tweeting law graduate and public servant Michaela Banerji’s failed attempt to obtain an injunction to restrain the Department of Immigration from sacking her for a series of scathing but anonymous tweets attacking numerous aspects of the asylum seeker policies of both Coalition and Labor governments:
In the end, Judge Neville did not consider whether a sanction against Banerji for her tweets was reasonable and proportionate. That is because he found that the constitutional freedom did not apply at all, because it did not provide a “license … to breach a contract of employment”. This is the most important and concerning part of the judgment, and it was accompanied by no reasoning.
See Banerji v Bowles  FCCA 1052. However it may be that Federal Circuit Court judge Neville J reached this conclusion in part because Banerji represented herself and (to put it kindly) seems not to have argued her own case very well. She based her argument on an assertion that the constitutionally implied freedom of political communication conferred on her a free-standing right which was infringed by sacking her for expressing political opinion. Neville J succinctly and correctly observed: “The unbridled right championed by Ms Banerji , which she says Kirby J articulated, does not exist.”
Banerji also seems not to have clearly articulated that she was seeking to challenge not only the administrative decision/action to dismiss her but also the constitutional validity of Commonwealth legislation. As such she simply wasn’t advancing a constitutional argument at all, as the High Court had explained only the previous year in Wotton v Queensland. However, at  –  Neville J notes:
In short, the Applicant contended that both of these cases provide authority for this Court to grant the relief sought, but on the relatively new ground that “s.13(11) of the Public Service Act 1999 (as interpreted by the Respondent) is completely and directly a burden on the freedom of political communication”.
It would have been open to Banerji to argue that section 13(11) was constitutionally invalid if interpreted as authorising the Commonwealth to dismiss her for anonymous tweets expressing a political opinion, and which also did not disclose that she herself was a public servant. Consequently one would argue that the section should be “read down” so as not to authorise disciplinary action in those circumstances. That is certainly a constitutional argument, and quite a respectable one at that. A somewhat similar argument succeeded before the High Court in Coleman v Power in 2004.
Incidentally, although on one reading Neville J rejected the applicability of the constitutionally implied freedom of political communication to employment contract disputes (even ones where the employer is the government), in a much more recent decision Gaynor v Chief of the Defence Force (No 3)  FCA 1370 a single judge of the Federal Court accepted that the implied constitutional freedom was applicable and set aside for breach of it a decision to terminate Gaynor’s appointment as an officer in the Army Reserve (for repeatedly disobeying orders to cease and desist from publishing social media and press releases demanding that gays and Muslims not be allowed to serve in the Australian armed forces).
Like Banerji, Gaynor also did not challenge any legislative provision, but nevertheless somehow managed to persuade a single judge of the Federal Court to hold his dismissal invalid on constitutional grounds. His counsel was Peter King, who also recently represented Senator Bob Day in his failed High Court challenge to the new Senate voting law. King’s arguments in Gaynor have a similar convoluted quality. The decision is currently on appeal and was heard by a Full Bench of the Federal Court on 5 and 6 May. The decision in Gaynor is problematic in various respects in my view. I would be surprised if it survives appeal.
In Roz Ward’s matter (if proceedings are pursued) I expect that the constitutional validity of the University by-laws that presumably form the basis of disciplinary proceedings against her would be challenged. As I discussed above in relation to Banerji, there would likely be an argument that those by-laws should be read down so as not to authorise disciplinary proceedings in circumstances where Ward engaged in communication on political subject matter in a private forum where she quite reasonably did not expect that her words would be made public.
Even if such a constitutional argument failed, it would be open to argue that any decision to discipline Ward in the circumstances is invalid on administrative law judicial review grounds. For example, it could be argued that such a decision is grossly lacking in proportionality in all the circumstances and therefore a decision that is so unreasonable that no reasonable decision-maker could have reached it. Alternatively it might be argued that the alleged damage to the University was an irrelevant consideration given that it arose from conduct by persons other than Ms Ward for which she could not reasonably be held responsible and could not have anticipated.
Of course all this is speculative, but interesting just the same.