Can corporations impose legally enforceable restrictions on peoples rights under Australian law?

Ask the Experts
21

Firstly I am no Legal expert or Legal professional and these are only my thoughts on the matter. I suppose in some circumstances they can impose legally enforceable terms on what you might call our rights. I will attempt to supply an example (this I have some touching knowledge of so can say with some degree of fact this has occurred):

There are many unsealed but legal roads in very poor condition within Australia particularly in what is termed the outback. You are legally entitled to travel on them, that might be considered a right of free passage, unfettered by private ownership of the land abutting those roads.

As a car owner a person may freely use that road and take on themselves the risk of damage or accident that this travel may cause (their insurance on the vehicle however may be voided depending on the risk they undertake). They may be warned by notice that the road is only suitable for 4WD traffic, and that normal 2 wheel drive cars are not suitable, but the risk is the person’s to take as is their right.

However, a person who hires a car unsuitable to travel on such unsealed roads may be given a contract that states the person is not to travel on those unsealed roads that are only suitable for 4WD vehicles. The person agrees to the contract.

The hire car is then driven on one of these roads by a driver who ignores the warning of the unsuitability of the road for their style of vehicle and sustains damage/breakdown to the vehicle by using it in a manner contrary to the contractual terms. The Hire Company would be able to enforce the contract breach by firstly seeking damages from the user, the user may disagree and it would be likely then heard in either a Civil & Admin Tribunal or perhaps a Court.

It would be extremely likely the Hire Company would win for breach of it’s terms of hire thus having a legally enforceable term in their contract with the user of the vehicle. That would be only one such enforceable right of contract. I know of such roads and I know some have breached similar conditions and have had to personally pay the cost of the damage and recovery this use had caused as the Insurance taken out did not cover the user for such use of the vehicle they had hired.

The ACCC does get involved when they see what they think are Unfair Contract Terms, particularly when it is the use of coercion by the one holding the power in the contract negotiations. The ACCC must argue their case as to why they believe the terms are unfair, it must be tested in a Court or the Contract issuer may also agree the terms are unfair and thus not enforceable.

Contract law can impose restrictions on some activity that might be termed “rights” and do so legally where the terms protect the rights of others when they also offer their “property” to another. That property may be Intellectual (IP), reputational or actual property, it may involve transfer of ownership or it may just be the use of that property for some limited or unlimited period.

As an another example is a games provider allows the use of a licenced game to be used by a player. The player for their payment and acceptance of the terms of use of the game ie the End User Licence Agreement obtains a right to use the game for their pleasure as long as that use is allowed by the EULA. These EULAs are legal as long as they are not unfairly onerous and that they may also be there to protect the rights of the supplier of their IP and even possibly protect or provide some benefit to others who may be also using the game. This may involve amongst others, things like controlling behaviour in game or when players attempt to break the game/s to gain some hacked advantage when playing in MMPORGs would very likely be and some definitely are legally enforceable rights eg a person who circumvents a game/s content protection is definitely in breach and nowadays also criminally liable.

A person may choose to breach the terms of contracts but if that breach is detected they may then be required to prove they legally could do so or they may face not just civil penalties but may also face imprisonment depending on what contract terms they breached.

ACCC 2013 Report on Unfair Contract Terms

ACCC 2010 Information publication titled “Consumers and unfair contract terms”

5 Likes
22

Point well made I feel - and ultimately if one has the funds to battle the corporations then all is good, otherwise one is at the mercy of fair trading or ACCC or equivalent - which is where consumer advocacy comes in.

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23

That’s a bit of a stretch isn’t it? If you start throwing juggling with items in a shop, you’re not breaking any laws. But the shop has full rights to ask you to stop and have the police remove you if you don’t

There’s nothing illegal about leaving a mean comment on social media, but it’s totally ok for a moderator to remove it.

You have every right to talk loudly, but a cinema can legally have you removed for doing it in a movie

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If you aren’t asked to stop or leave no you aren’t, once they demand you stop or ask you to leave and you don’t then you are either trespassing in the instance they ask you to leave, not sure what law you may be breaking if they just ask or demand you stop the juggling I’m not sure that is trespass but it is obviously leading to the request to leave
 :slightly_smiling_face:

Yes I agree with you! We have rights and those rights are not generally allowed to unreasonably impinge the rights of others to enjoy their lives or property.

Depends on what is termed mean, if it is racially abusive, and some other forms in some places eg EU it can be an offence. In some cases the Social Media platform must remove the comment or face legal ramification as well.

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25

No it is the actual fact legally.

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This is a good example and highlights an important distinction. Your rights are not actually curtailed you are merely held responsible for any damage your behaviour might cause.

I don’t necessarily disagree with this;

The devil is in the detail though and whether “reputation” should have precedence over a persons property rights seems highly questionable?

Or this:

I don’t have a problem with people being held to reasonable standards of behaviour.
I do have a problem with what could reasonably be considered generally acceptable behaviour being censored for religious or political reasons however?

27

Just watched a video with some information about the FTC in the US stating that void if removed stickers are illegal. https://www.youtube.com/watch?v=HQ2h2eMaAwo It starts at 21m38s. (hope I’m allowed to link YouTube video’s?)

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The video at 21:38 is about the progress of the Massachusetts right to repair laws through its State legislature and not about void if removed stickers being illegal. Have you posted the right link?

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You haven’t shared a link to any actual laws. All you’ve done is say it’s fact. Do you perhaps have a link to what you’re claiming? Forgive my skepticism but you’ve made a very broad claim with 0 evidence except a youtube link that goes to something different to what you say

I’ve shared several counter examples to your claim that you’re yet to respond to them

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Yes they are curtailed. The right to travel freely on any legal road is curtailed by the contract terms. That was the thrust of your topic heading ie is there any legally enforceable restrictions. It is a legally enforceable restriction on a person’s right. It is no longer a right while the behaviour is subjected to legally binding conditions and thus penalties can be imposed for the breach of contract terms.

They are as important as any other thing owned by a person (whether a real person or a company). That is why we have libel and slander law to protect the reputation of a person from being damaged unless warranted. To reduce that protection because something else has a more physical aspect is contrary to what is acceptable to most people and tort law.

This is not quite what the topic describes but the limit on behaviour can depend on many things. An example is that generally an employer can require a person to deal with customers without regards to the employee’s political or religiously held beliefs. So the employer can impose restriction by contract of employment while the employee is currently working in the workplace. This affects what may be termed as the implied right of freedom of speech (we do not have a written law that protects right of freedom of speech). So speech that might (and only might) be acceptable for a person to use in their non work interactions can be legally curtailed by contract conditions.

So to answer the topic question in general terms, Yes, corporations can impose legally enforceable restrictions on peoples’ “rights”. Not every right can be contracted away but there are certainly some that can be and are. You cannot stop a person making a choice to do something, but making a choice to do or not do something is not to be confused with the ability to curtail a right to do or not do something. When a person makes a choice there are consequences attached, whether good or bad depends on the choice the person made.

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By default the intellectual property rights to a de novo creation belongs to the creator but under contract it may automatically become the property of the employer. This can be quite general as it applies to any future unnamed creation by the creator.

By default you can talk about your work with your spouse across the pillow but employees cannot mention things ‘cabinet in confidence’ or ‘commercial in confidence’ if the terms of their employment say so.

The very obvious and widespread nature of such restrictions were part of the reason why I tried to get the OP to say which case he was thinking about as I saw no reason to debate the general case.

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(post withdrawn by author, will be automatically deleted in 24 hours unless flagged)

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Is it against the law to do something that is not forbidden by law?
No.
Therefore you have the right to do things that are not illegal.
Obviously this is different to enshrined rights, which exist to protect people in what some people might think are grey area’s?

Even in University papers it is not required that statements of common knowledge be backed by quotes.
Let alone those that are completely logically obvious to anyone who does not have an extremely dishonest agenda?

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You will not go to jail if you drive on such roads.
Your right to drive on such roads has not been curtailed.
You are only being held legally responsible for damage if it occurs due to your using SOMEONE ELSES PROPERTY in a manner that they have not given you permission to.

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So you could claim your business is based on having a reputation for violating peoples rights and therefore have the legal authority to violate any right even to life?

You fudge the facts to make clear water muddy.

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Now this is a good example.
I agree.
But this is also being vigorously contested.

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I do not believe you have established this?
In the only case that even provides a legitimate example it is obviously still the employers right as they are the owner.
The owner of the business has the precedence and the employee’s right of reputation or freedom of speech is subservient.

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Human Rights under Common Law in Australia?

Ask an Expert. - plenty of wisdom and reading here with no need to reinvent the wheel.

https://www.humanrights.gov.au/our-work/rights-and-freedoms/common-law-rights-human-rights-scrutiny-and-rule-law

P.S.
Don’t forget to look up and read all the references if you feel a need to respond.

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I did say starts?
It is only a little background for context before the statement is made.

I included the context because I am very aware of how quotes taken from context can be so misleading???