David Leyonhjelm. Owning your own mind

Employment is based on a contract in which there is an implied obligation on the employee not to harm the employer. If an employee steals from the employer or damages the employer’s property, the contract may be terminated. The same is true when an employee drives away customers or financiers by publicly criticising their employer.

The High Court recently ruled that a public servant can be sacked for social media posts critical of the government, even when the posts are made anonymously. Rugby Australia sacked Israel Folau on the grounds that he is not entitled to express his religious beliefs, with which it disagrees, because they are said to breach his employment contract.

Governments should be very wary of intruding into matters of individual choice, even when that choice is unwise. That includes entering into a contract. It is sometimes said that providing a means to uphold contracts is one of the few useful functions of a government.

There are, nonetheless, rules that govern whether a contract exists, who can be a party to a contract, remedies for breach of contract, whether aspects of a contract are unconscionable, and even what can be contracted. A court will not uphold a contract if it involves an act that is illegal, for example. A contract to kill a person, commit forgery or discriminate on the grounds of race would not be enforceable.

A person also cannot contract to become a slave. It is not relevant, legally at least, that they might willingly sign a contract to that effect. Owning a human being, unlike owning a dog or a cow, is simply illegal.

The High Court decision, although ostensibly about a public servant, has broad implications. Informed people suggest it means that any employee who is critical of their employer’s position on a politically relevant social issue can be sacked. The Rugby Australia decision suggests it holds that view too.

Given the growing propensity of companies and organisations to adopt policies on social issues, this is a matter of considerable concern. A Qantas employee who does not share the company’s policy on gay rights, or someone who disagrees with their employer’s decision to withdraw advertising from the Alan Jones radio program, may find they need to remain silent or risk losing their job. The implications for free speech and political discourse are enormous.

It is also in conflict with Australia’s international obligations. Freedom of expression is recognized as a human right under Article 19 of the Universal Declaration of Human Rights, which states that “everyone shall have the right to hold opinions without interference” and “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”.

Furthermore, Australia is a signatory to the International Covenant on Civil and Political Rights, which protects not only the expression of favourable information or ideas but also unpopular ideas including those that may offend or shock.

The key issue here is whether it is acceptable for employers to have control over expressions of opinion by their employees, when such expression is legal and causes the employer no material harm. This is a far bigger issue than the current debate about religious freedom, significant as that may be.

Notwithstanding my strong support for contract freedom, I do not believe it is acceptable. If an employee is not allowed to express an opinion, or to express an opinion contrary to that of the employer or a sponsor, it amounts to opinion slavery. Indeed, it could be said that the employee’s mind is owned.

It is certainly not consistent with JS Mill’s famous statement, “over himself, over his own body and mind, the individual is sovereign”. An employee is hardly sovereign over his own mind if he is prevented from expressing an opinion disagreeable to his employer.

Maybe the government will succeed in passing legislation to protect freedom of religious expression. Maybe the High Court will decide Folau didn’t break his contract. But even if both occur, which is unlikely, it would not be sufficient. Ultimately, contracts imposing opinion slavery need to be made just as unenforceable as contracts involving physical slavery. Nobody should own our minds, not even when we work for them.

David Leyonhjelm is a former senator for the Liberal Democrats

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27 Responses to David Leyonhjelm. Owning your own mind

  1. None

    Thank you Rafe and David, on this I wholeheartedly agree with you.

  2. struth

    Good post as it explains that not all contracts are legally binding like a contract to kill for example.
    The flying Kangapoof has decided the political views all his employees must hold!!!
    and when it comes to public servants shooting their mouths off, I think of that dopey bint that sprayed against Anzac Day and who eventually moved to England because of it.
    I’d rather they out themselves at all times.
    The public dealt with her.
    What happened was entirely what should happen in a free country.
    She got booted from the public service jobs by those who made her job untenable by their disagreement.
    The same should happen to Alan Joyce.
    Booted from Qantas for being a political Nazi.
    But not because of contact but because a population of just citizens calks out their bullshit until their position is hopeless.
    I’m dreaming I know.

  3. C.L.

    The High Court recently ruled that a public servant can be sacked for social media posts critical of the government, even when the posts are made anonymously. Rugby Australia sacked Israel Folau on the grounds that he is not entitled to express his religious beliefs, with which it disagrees, because they are said to breach his employment contract.

    There are no great minds on the High Court and never have been. Its judges routinely make things up based on what is thought to be ideologically expedient at the time. That’s the only explanation for the dimwitted indifference to whether a public servant posted anonymously or not. Obviously, that should have made a difference. But it is not unreasonable, per se, to require public servants not to undermine the government when they are paid to serve that government. For example, nobody seriously believes spies, solicitors-general or High Court judges for that matter are entitled to criticise the government.

    Having said that, this case bears no comparison to the Folau case. Folau was not paid to serve taxpayers, was not remunerated by them, was not privy to confidential or sensitive state secrets. He was sacked from his private sector employment because he publicly expressed his religious views. He is entitled to those views and the right to espouse them.

  4. struth

    With a population of “just” people , the fat old goth running Rugby in Australia would be getting her marching (or waddling) orders, via public pressure .
    What wecare seeing all over Australia is the collapse of our society because no one really givesca shit while the left are threatening the advertisers of those they disagree with.
    You’re always going to lose a fight you won’t fight and you deserve to.

  5. John Constantine

    I did a reference for a bloke recently.

    He was overqualified for the job, but was prepared to take less money to get to do interesting research and development work, with job stability.

    The final phone contact from the employment czar had nothing to do with being able to do the job, it was about his ability to be a team player in the diversity workplace she had constructed.

    Fitting into diversity more important than anything else.

  6. Just take note that this is a taste of the future under Leftist governments. The processes to control your thoughts are already well underway when it comes to the media etc and, if given the opportunity, it will become law. 1984 and Animal Farm weren’t just science fiction novels.

  7. Bruce

    See also:

    https://www.thediplomad.com/2019/09/politics-of-and-by-seriously-disturbed.html

    Excerpt:

    “Some 16-year-old Scandinavian girl, Greta Something Swedish, is being hailed as some great beacon of clarity and moral purpose in pursuit of another ongoing hoax, Climate Change. I heard her speak at some fake panel, and while full of admiration for her English, I must conclude that we are witnessing either an ardent student of the Meryl Streep School of Acting or a seriously abused child. If she’s not acting, I worry that she poses a danger to herself and others. Put her on suicide watch, at least. We have here a perfect example of a youngster programmed by some adults and sent forth much like we see Islamic child suicide bombers, or Mao’s Red Guard, or Hitler Youth.

    The left is so mentally disturbed that they want to kill as many children as possible, in the womb preferably, and turn those who live into robots spouting nonsense and preaching death and destruction which can can only be avoided by giving the Progs more power over all of our lives.”

  8. Beachcomber

    1984 and Animal Farm weren’t just science fiction novels.

    No. They were meant to be precautionary tales, but have become instruction manuals for the Left.

  9. Des Deskperson

    ‘The High Court decision, although ostensibly about a public servant, has broad implications. Informed people suggest it means that any employee who is critical of their employer’s position on a politically relevant social issue can be sacked’

    And yet a public servant is in a somewhat different position. Since political decisions – as supposed to commercial or sporting decisions – tend to affect us all, then public servants ought to have the same basic rights of political expression and criticism as the rest of society. The problem is how to exercise these right while avoiding perceptions – note, ‘perceptions’ – of their ability and willingness to independently and objectively implement to policies of the government of the day.

    This is a complex issue and its application would have to vary from case to case. I would agree in principle that anonymous comments wouldn’t necessarily compromise perceptions of a public servant’s ability to do their job, but in the High Court case, the employee’s criticisms focussed directly on the her particular area of work and even on her supervisor. Her identity was bound to come out, and when it did, what employer anywhere could be expected to tolerate such a situation, although whether she deserved the sack when there were a range of other sanctions available remains an issue for me.

    The problem is, of course, the the High Court case will encourage public service management to tighten the screws. The APS Code of Conduct requires employees to ‘ at all times behave in a way that upholds the APS Values’. According to the Public Service Values, the APS is ‘apolitical’. This could arguably be interpreted to mean that APS employees must be apolitical at all times. It’s a worry.

  10. I_am_not_a_robot

    Nobody should own our minds, not even when we work for them …

    What about a teacher in a Catholic school publicly disagreeing with the Church teaching on same-sex marriage?
    I think we’ve been here before.

  11. Roger

    What about a teacher in a Catholic school publicly disagreeing with the Church teaching on same-sex marriage?

    That situation is hardly tantamount to a corporation seeking to impose restrictions on the freedom of speech of its employers.

    The right of religious schools to protect their ethos by being discriminating as to who they hire has been protected in law for decades. And for good reason: it goes to the universal human right of freedom of religion.

    When corporations seek to do the same they are impinging on the political rights of their employees, i.e. freedom of speech. That is a very unwise path to go down in a democracy.

  12. stackja

    Roger – Israel case seems to show Australia is not democratic. Tasmania tried to silence clergy.

  13. Jo Smyth

    As long as the Government is content to let the media set the agenda and don’t have the guts to speak out even when they know the majority of the public want them to, then they are complicit in what is going on. History is slowly repeating itself. Just look at all the tapes of the brainwashed youth in Europe in the 30s and be aware of what is happening.

  14. Lee

    I’m not sure the public servant case and the Folou case are comparable?

    The public servant criticised her employer. Folou did not criticise Ruby Australia or anything to do with the game. His speech was unrelated.

    I’m an employer and if my employees were criticising my business, I would find it untenable to continue to employ them. Other than that, I’d say they can do as they please, which is Folou’s position.

  15. I_am_not_a_robot

    The right of religious schools to protect their ethos by being discriminating as to who they hire has been protected in law for decades …

    The right of any employer to hire who they like (or not) had been protected by law until anti-discrimination provisions became fashionable.
    The purpose of the religious freedom bill (or Folau bill) as I understand it is to grant religious organisations a special exception to anti-discrimination law.
    I was not arguing law but principle, the principle David Leyonhjelm raised.

  16. Tim Neilson

    There are no great minds on the High Court and never have been.

    A bit harsh. What about Sir Owen Dixon?

    Though I suspect he would concur with the rest of your post. He said once, in response to a criticism that the High Court (of which he was then Chief Justice) was “excessively legalistic” – “I should be sorry to think it was anything else”.

  17. Tim Neilson

    I_am_not_a_robot
    #3167039, posted on September 25, 2019 at 10:48 am

    I agree with you about the proposed Bill. The best way to protect religious freedom is to protect freedom, not to expand the powers of the tolerance Na#is.

    But I think there is a clear distinction, which other commenters have made, between damaging the employer’s enterprise and just contradicting the employer’s general (non-business related) ideology.

  18. Bela Bartok

    The High Court recently ruled that a public servant can be sacked for social media posts critical of the government, even when the posts are made anonymously.

    If this is the case – that public servants making public comments critical of government can be sacked – why can’t we just sack Anthony Albanese, that Wong chap and all the Greens?

  19. If I get a job as the CEO of ‘Steaks Australia’ and some time later my skinny vegan girlfriend convinces me to go activist vegan, and I attend public protests throwing red paint bombs at butchers windows and do TV interviews claiming eating meat is a crime etc etc, I shouldn’t be surprised if I get the sack.
    Folau didn’t rail against his employer or the industry he works in. His SocMed rants were unrelated.
    This is a travesty, pure and simple and I hope that little sodomite suffers in some way for it.

  20. Frank Walker from National Tiles

    Where is that uttewr left wing fraud I Am Putrid to attack Australia’s first libertarian Senator for not being a Real Boy (TM) Randroid like him?

  21. Iampeter

    This article would be comedy gold if it was posted at The Onion, but it’s doubly funny being posted at what’s meant to be a “right wing” blog for serious political discussions.
    It’s sad that it’s written by David Leyonhjelm, but not surprising. Libertarians have the same issue as conservatives, in that neither political movement has any idea about politics whatsoever.

    Where to even begin?

    Employment is based on a contract in which there is an implied obligation on the employee not to harm the employer.

    This is implied in ALL relations in a social context. There’s nothing special about the employer/employee relationship in this regard. This vague and irrelevant start to the post has nothing to do with anything that follows.

    Rugby Australia sacked Israel Folau on the grounds that he is not entitled to express his religious beliefs, with which it disagrees, because they are said to breach his employment contract.

    That’s not why RA sacked Folau, as you well know, so this is a shameless and dishonest statement.
    In any case, if you don’t support RA’s right to fire Folau even if it was for this reason, then you don’t support one owning ones mind and are advocating for the very slavery-by-contract you go on to argue against in this post.

    That includes entering into a contract. It is sometimes said that providing a means to uphold contracts is one of the few useful functions of a government.
    There are, nonetheless, rules that govern whether a contract exists, who can be a party to a contract, remedies for breach of contract, whether aspects of a contract are unconscionable, and even what can be contracted.

    Employment “contracts” in Australia are not written to comply with contract law but with the Fair Work Act, which is overseen by the Fair Work Commission, a HRC-like body that those who are not leftists should oppose the existence of on principle if nothing else.
    FWA regulations use words to make it sound like this is just contract law but “Former Senators” should know better. Especially those who claim to not be leftists.
    Although some people might still use actual contract law when they can prove actual damages in an employment dispute, things like “unfair dismissal” will never qualify.
    Also, the examples like Ridd, or Folau, who have simply lodged Fair Work complaints, are not actual contract disputes. Which is the same thing as dragging someone to the HRC. It’s suing people for hurt feelings and out of a leftist entitlement mentality. I can’t believe this needs to be explained to David L.
    If we didn’t have the FWA then employment contracts would indeed be handled by contract law, but no one at Australia’s Leading Right Wing blog is advocating any opposition to these leftist regulations. In fact everyone is demanding even more LOL.

    A person also cannot contract to become a slave…

    Except an employer who fires someone for reasons you disagree with, apparently…

    The implications for free speech and political discourse are enormous.

    There are ZERO implications for free speech and political discourse by protecting individual rights, like free speech and political discourse by allowing employers to hire and fire for whatever reasons they want.
    I can’t believe that this needed pointing out.
    On the other hand, if you think the state should regulate who businesses get to fire, even more than it currently does, as everyone here seems to, then there are indeed “implications” for free speech. And ALL our freedoms too.

    The key issue here is whether it is acceptable for employers to have control over expressions of opinion by their employees, when such expression is legal and causes the employer no material harm.

    This is not a “key issue” because it’s not ANY kind of issue. No action taken by employers can affect an employees freedom of expression.

    Just like the rest of the politically illiterate left that typifies conservatives and libertarian movements today, it seems David Leyonhjelm has got “censorship” and “free speech” backwards. Like the rest, he is advocating the former while under the delusion that he is supporting the latter.

    It takes a special kind of clueless to be this lost, but this is what we have from today’s conservatives and libertarians.

    Onion-level parody of “political discourse.”

  22. I_am_not_a_robot

    Tim Neilson at 11:02 am,

    “… the tolerance Na#is …” is oxymoronic.
    My point is that granting special exception from laws on any basis is unjust, the law ought apply to everyone equally.

  23. Frank Walker from National Tiles

    Right on cue, the Real Boy (TM) Rand-bot parody troll turns up like 5 O’Clock Charlie.

    Arguing that your employer can regulate all aspects of your private life is just an absurd parody of the right.

    No one actually believes this. It is just idiotic shit the left believes about the right, just like the “only at will contracts are actually consistent with right wing philosophy”.

    Wrong you blithering idiot. Having at-will laws that ALLOW such conditions is a consistent right-wing position.

    What terms are agreed to ought to be entirely between the contracting parties – you know, based on freedom of association.

  24. I_am_not_a_robot

    There are, nonetheless, rules that govern whether a contract exists, who can be a party to a contract, remedies for breach of contract, whether aspects of a contract are unconscionable …

    Assuming Israel Folau’s contract includes a condition: “… not to do anything which is likely to intimidate, offend, insult or humiliate another participant on the ground of the religion, sexual orientation, disability, race, colour or national or ethnic origin of the person …” or words to that effect, I don’t see why that could be regarded as an “unconscionable” condition.
    Surely any reasonable person can control themselves in those respects for the duration of their contract.
    Whether condemning a category of the persons listed to hell is ‘intimidating, insulting or humiliating’ I suppose is one matter for a court to decide.

  25. Howard Hill

    This is really simple. First you say this.

    Employment is based on a contract in which there is an implied obligation on the employee not to harm the employer. If an employee steals from the employer or damages the employer’s property, the contract may be terminated. The same is true when an employee drives away customers or financiers by publicly criticising their employer.

    And I’ll highlight the really relevant bit.
    Employment is based on a contract in which there is an implied obligation on the employee not to harm the employer

    Then you say this:

    Ultimately, contracts imposing opinion slavery need to be made just as unenforceable as contracts involving physical slavery. Nobody should own our minds, not even when we work for them.

    So how do you stop employees from doing what you said in my first quote?
    But allow them to maintain their right to freedom of expression when it, in the eyes of their employer and to quote your words “not to harm the employer”.

    So who is more equal than the other? They both command the high ground here, no?
    I’m in the camp of the employer and as this is a libertarian blog, supposedly? I shouldn’t have to explain why!

  26. Bela Bartok

    Just to remove doubt, the NRL has advised me that :
    “As an organisation the NRL is driven by its beliefs which state we are inclusive, positive, united and disciplined.”
    … and that’s why they’re banning him forever, despite domestic violence, public urination and defecation, gang-rape, violence being acceptable, Christianity is not.
    The NRL are also chuffed no Australian club has been brave enough to offer him a role.
    Quite disgusting.
    If you’re a Christian, NRL hates you.

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