In the context of the current postal survey on changing the law of marriage in Australia, press reports in the last few days indicate that a contractor who had been working for an ACT-based children’s entertainment business has lost her position solely due to her indication of support for a “No” vote in the current postal survey on the issue being conducted in Australia. (See here for a detailed report on the incident quoting both sides.)
It seems worth commenting on the legal implications of the decision to terminate the contractor, especially in light of the “Safeguards” legislation that was recently passed by the Federal Parliament, and on which I recently posted.
It seems arguable (based on what has been reported in the press) that the business owner here has breached a number of laws. Whether or not the dismissed contractor, Madeline, will take legal action, it is worth noting this, in case others decide to take a similar approach to employees or contractors with whom they disagree on this issue.
Liability under the recent Safeguards law
It has to be said, however, that the illegality of this action under the recent Federal legislation is not entirely clear. Section 15 of the Marriage Law Survey (Additional Safeguards) Act 2017 (the Safeguards Act) makes it unlawful for someone to vilify, intimidate or threaten to harm someone because of their views on the marriage law survey question, but somewhat surprisingly does not directly penalise the actual causing of harm to someone on that basis.
Here, however, there seem to be a couple of ways in which an offence may have been committed.
For one thing, in a very public Facebook post which was widely circulated, the business owner, Madlin Sims, said that Madeline’s choice to vote “No” (which was simply conveyed by her Facebook profile) was of itself “homophobic”. Here is the whole post (apologies for some of the language):
One question raised here is this: does it “vilify” someone to claim that they are “homophobic”? This term, of course, whatever debates one might have about etymology, has now come to mean something beyond “fear”, and to refer to something like “irrational animosity towards homosexual persons”. The OED, for example, gives as the current meaning: “Fear or hatred of homosexuals and homosexuality.”
What does it mean, then, to “vilify” someone? Oddly this term itself is not clearly defined as a matter of law. However, there are laws which refer to the concept of “vilification” as a shorthand way of describing a particular type of speech. For example, in Victoria’s Racial and Religious Tolerance Act 2001 there are two provisions with “vilification” in the heading to the section, even though the verb itself is not used in the text. To take one that is perhaps most closely connected with the Safeguards Act, we read in s 8 of that Act the following:
Religious vilification unlawful
8 (1) A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons. (emphasis added)
We can also see the same phenomenon in NSW, where, for example, in the Anti-Discrimination Act 1977, the heading to Division 4 of Part 4C of the Act is “Homosexual Vilification”, and s 49ZT provides as follows:
49ZT Homosexual vilification unlawful
(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group. (emphasis added)
So it seems plausible to say that when a modern Australian Parliament enacts a law forbidding “vilification”, it probably intends to pick up this sort of meaning: that it refers to speech which incites hatred towards someone, or serious contempt for someone, or [revulsion] or severe ridicule of someone, on the basis of a protected characteristic.
To come back to this case, then: does calling someone a “homophobe”, incite hatred or serious contempt or severe ridicule towards them? A court might find that this is the case, especially in the highly charged atmosphere of social media and the current debates over the survey. On the other hand, a court might find that in the interest of protecting the strong value of free speech, the word has perhaps become so common a canard thrown at opponents that it really does not rise to those serious levels any more.
There seems to be a more direct route to illegality under the Safeguards Act here, though. Ms Sims goes out of her way at one point to say “this wasn’t a ‘you’re voting no, you’re fired’ situation”. Her meaning in light of subsequent comments about “prior conversations” seems to be that the contractor had been made aware of her concerns. If those concerns had the tone, however (and it seems they probably did), of “unless you remove that Facebook profile, you won’t be working for us any more”, then arguably at that point there was a breach of s 15 because there was a “threat to cause harm” (i.e. to cause a loss of income) on the basis of a view that had been expressed in respect of the marriage law survey question.
So if, in contrast to the above, nothing had been said about “homophobia”, and if no prior warning had been given, would the business owner here (or a future employer) be lawfully entitled to sack someone with no warning because of their views on the marriage law survey question?
Illegality under Discrimination Law
It seems likely that in any case there may also be a breach of the ACT Discrimination Act 1991. Section 7(1)(o) of that Act makes “political conviction” a “protected attribute”, and under s 13 contractors as well as employees are protected:
It is unlawful for a principal to discriminate against a contract worker—
… (b) by not allowing the contract worker to work or continue to work…
Would a view on the postal survey question be regarded as a “political conviction”? While the survey is not an election, there seems no doubt that it is regarded as effectively equivalent to a popular vote on support for the matter, and hence a “political” topic. In the decision of the ACT Civil and Administrative Tribunal in Kovac v Australian Croatian Club Limited  ACAT 41, after discussing various interpretations of this phrase, the Tribunal summed up its view at  that:
It is sufficient if the belief is one that ‘bears on government’ or involves the processes, policies or obligations of government.
Since the Commonwealth Government has initiated the process of the survey, and plans to use it to decide its policy on changing the law of marriage, it seems clear that a firm view on the outcome of the survey is a “political conviction”. No relevant exemption seems applicable here- under s 45 workers for political parties may be hired or fired based on their political views, but it seems unlikely that this principle would apply to a children’s entertainment business. Hence it seems likely that the action of refusing to offer further work to a contractor based on their expression of a view about the survey vote, was unlawful discrimination under the ACT law.
Illegality under other Federal law?
There is also a question as to whether there has been a breach of the Commonwealth Fair Work Act 2009. Indeed, a recent press report indicates that the Fair Work Ombudsman is investigating this possibility: see “SSM: Fair Work Australia to investigate after Canberra contractor fired for backing No vote” (ABC News, 20 Sept 2017).
However, it may be doubted whether there are any remedies under the FWA. The usual provisions governing employees would probably not apply to a short-term contractor: see s 351 (prohibition against discrimination by an employer) and the unfair dismissal provisions (ss383-384). There is a little-used provision of the FWA which was enacted based on Australia’s international law obligations, s 772, which is in Part 6-4, which “contains provisions to give effect, or further effect, to certain international agreements relating to discrimination and termination of employment” (s 769). Under s 772 it is unlawful for an employer to terminate an employee’s job for a range of reasons, including under s 772(1)(f) “political opinion”. But again, this applies to employees, but is not said to extend to contractors.
In short, it seems likely (based on what has been reported) that this action was illegal under the Safeguards Act and also under local ACT discrimination law. Respectful debate on this important issue is not furthered by threats to harm others because of their views on the matter, where those views are not directly relevant to a person’s work.
In accordance with s 6(5) of the Marriage Law Survey (Additional Safeguards) Act 2017, this communication was authorised by Neil Foster, of Newcastle, NSW.
UPDATE (September 2018)
For those who are interested, in April 2018 it was announced that the Fair Work Ombudsman (which investigates breaches of Commonwealth law) had announced that it was not able to determine whether there had been a breach of that law in this case: see an ABC New report here (19 April 2018). It is important to read carefully to see why this announcement was made. The investigation was terminated, the article says:
“Discrimination occurs in the workplace when an employer takes adverse action against an employee because of a protected attribute.
“As the FWO has been unable to determine the nature of the engagement based on the evidence available, we will be taking no further action in relation to this matter at this time.”
The issue that led to the matter being dropped was the “nature of the engagement”- in other words, it was not clear that Madeline was an “employee” as opposed to a contractor. I had already noted (above) that the Commonwealth laws would not apply to contractors. The FWO did not conclude that sacking someone because of their political views is acceptable. It did not investigate the probable breach of ACT discrimination law. It may be that the person concerned chose not to pursue remedies under that law. At any rate, the course of events should not embolden anyone to dismiss employees or contractors simply because they hold controversial views unrelated to their duties.