Comcare v Banerji [2019] HCA 23 - Decision from 7 August 2019

Introduction

The High Court has made an important decision, which confirms that there is not an unfettered right to the implied freedom of political communication and clarifies that obligations on APS employees under the Australian Public Service (APS) Code of Conduct extend beyond conduct in the workplace, even where anonymous statements are made via social media.

Facts

An employee working in the Department of Immigration and Citizenship (the Department) broadcast more than 9000 Tweets under the handle “@LaLegale”, some of which were posted during work hours and were critical of the Department and its employees, policies and administration, as well as the Government and Opposition, their policies and members of Parliament.

A complaint about the employee’s use of social media was raised with the Workplace Relations and Conduct section of the Department, who conducted an investigation into whether the conduct breached the APS Code of Conduct. The investigation determined that a breach had occurred, and the employee was offered an opportunity to respond to the Authorised Delegate. Just over three weeks later, the Authorised Delegate notified the employee of the Department’s intention to terminate her employment. The employee met with the Authorised Delegate and admitted to publishing the Tweets. She later submitted further responses to the proposed termination, and sought an injunction restraining the termination, but was subsequently given notice that her employment was to be terminated under s 15(1) of the Public Service Act 1999 (Cth) (the Act).

The breach decision was made on the requirement in the APS Code of Conduct that employees must constantly “uphold the APS Values and the integrity and good reputation of the APS” (s 13(11) of the Act). The APS values include being apolitical and being impartial and professional in the way it performs its functions (s 10(1) of the Act).

The employee claimed workers’ compensation for injury resulting from the termination of her employment. This was rejected by Comcare on the basis that the termination of her employment was “reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”.¹

Issue

The employee argued that the provisions of the Act under which her employment was terminated imposed an unjustified burden on the implied freedom of political communication, which rendered her dismissal unlawful.

The AAT set aside Comcare’s decision, on the basis that the use of the APS Code of Conduct trespassed on her implied freedom of political communication.  Comcare then appealed that finding to the High Court.

Findings

The High Court of Australia unanimously determined that the impugned provisions did not impose an unjustified burden on the implied freedom of political communication, with the result that her termination was not unlawful.

Kiefel CJ, Bell, Keane and Nettle JJ held that the implied freedom of political communication is not a personal right of free speech but a restriction on legislative power, and so only extends as far as is necessary to protect the principles of representative and responsible government under the Constitution. Whether a law imposes an unjustified burden depends on its effect on political communication as a whole. Justices Gageler, Gordon and Edelman agreed, each providing separate reasons.

The High Court considered that the provisions of the Act in dispute had a purpose consistent with the principles of representative and responsible government because they sought to uphold the apolitical nature of the public service, and were suitable, necessary and adequate in balance, meaning the disputed provisions were a reasonably appropriate and adapted restriction on the implied freedom of political communication.

In identifying the object of the Act, the High Court also identified a number of obligations which public servants are subject to. These include the requirement for loyalty, neutrality and accountability to Parliament, the Government and the Australian public, which is fundamental to the principle of responsible government.

Edelman J considered that s.13(11), and other APS values, do not prevent public servants from making political comments on social media, provided the comments do not “…imperil the trust between…the APS and…Parliament, the executive government, or the public”. He considered that there are six factors of particular significance to any assessment of whether the relevant trust is sufficiently imperilled:

• the seniority of the public servant within the APS;
• whether the comment concerns matters for which the person has direct duties or responsibilities, and how the comment might impact upon those duties or responsibilities;
• the location of the content of the communication upon a spectrum that ranges from vitriolic criticism to objective and informative policy discussion;
• whether the public servant intended, or could reasonably have foreseen, that the communication would be disseminated broadly;
• whether the public servant intended, or could reasonably have foreseen, that the communication would be associated with the APS; and
• if so, what the public servant expected, or could reasonably have expected, an ordinary member of the public to conclude about the effect of the comment upon the public servant's duties or responsibilities.

Anonymous social media

In relation to social media, the High Court also addressed anonymous communications, saying that anonymous communications are at risk of ceasing to be anonymous, and thereby depending on the circumstances and content of an anonymous communication, the communication may damage the good reputation of the APS even while it remains anonymous. 

These comments particularly highlight that the use of social media by APS employees to make political statements may clearly bring the employee into breach and is not a ‘get of jail free card’ when it comes to both upholding the values of the APS while also engaging in political commentary.

The High Court also referenced some further obligations owed by employees under the Code of Conduct in s 13 of the Act, identifying that the extent of compliance with the Code of Conduct required by employees varies from upholding APS values at all times to acting with honesty, integrity, care, diligence, courtesy and respect in the course of APS employment.

What's next?

We recommend that Departments and Agencies update their policies and training to ensure that the scope of the High Court decision is known by its employees. We suggest that a circular is issued to employees reminding them of their obligations to comply with the APS Code and Values.

This update was written with the assistance of Michelle Isaac, Special Counsel and Ross Watkins, graduate.