No freedom of political communication for apolitical public service High Court

In the case of Comcare v Banerji [2019] HCA 23, the High Court of Australia recently considered whether a decision to terminate the employment of a public servant who had tweeted political commentary and criticism was unlawful and, if so, whether Comcare was liable to pay compensation for psychological injury suffered as a result of that termination.

Facts and issues

Michaela Banerji was employed in the Ombudsman and Human Rights and Equal Opportunity Commission Section of the (former) Department of Immigration and Citizenship (Department).

The Australian Public Service (APS) Code of Conduct (as at the time) relevantly included the following:

The APS Values included that ‘the APS is apolitical, performing its functions in an impartial and professional manner’: s10(1).
That APS employees must ‘at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS’: s13(11).
An ‘Agency Head’ can impose sanctions on an APS employee found to have breached the Code, including termination of employment: s15(1).

Departmental and APS guidelines further cautioned against ‘unofficial’ public commentary and advised that anyone posting material online should assume that their identity and employment would be revealed.

During her employment with the Department, Ms Banerji created a twitter profile in the name ‘@LaLegale’ and published over 9,000 tweets. Some tweets were published during work hours and the High Court described ‘many’ of the tweets as ‘variously critical of the Department, other employees of the Department, departmental policies and administration, Government and Opposition immigration policies, and Government and Opposition members of Parliament’.

Tweets from the @LaLegale Twitter account came to the attention of Ms Banerji’s employer by way of complaints made by other public servants. The resulting APS Code of Conduct investigation determined that Ms Banerji had breached the APS Code of Conduct and her employment was ultimately terminated on 13 September 2013.

Ms Banerji sought workers’ compensation from Comcare on the basis that she suffered a psychological injury, diagnosed as ‘adjustment disorder characterised by depression and anxiety’, as a result of the termination of her employment.

As a Commonwealth employee, Ms Banerji’s workers’ compensation entitlements are determined by Comcare under the Safety Rehabilitation and Compensation Act 1988 (SRC Act).

Section 5A of the SRC Act relevantly provides that Comcare is liable to pay compensation for injuries (including aggravations) that arose out of, or in the course of employment, but excluding any injury or aggravation ‘suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment’.

Comcare denied liability for the psychological injury on the basis that the termination of Ms Banerji’s employment was ‘reasonable administrative action taken in a reasonable manner’.

Before the Administrative Appeals Tribunal, Ms Banerji argued that the termination of her employment cannot be characterised as reasonable administrative action carried out in a reasonable manner as it was carried out in breach of the implied freedom of political communication identified by the High Court in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520. The Tribunal found, ‘that the termination trespassed on the implied freedom of political communication, was thus unlawful, and so cannot constitute reasonable administrative action’.

Comcare lodged an appeal against the decision of the Tribunal, which was then removed to the High Court of Australia pursuant to s40(1) of the Judiciary Act 1903 on the application of the Attorney-General of the Commonwealth, who intervened in the proceedings.

The question identified for judgment by the High Court was whether ss10(1), 13(11) and 15(1) of the Public Service Act 1999 (PS Act), as at 15 October 2012, imposed an unjustified burden on the implied freedom of political communication, with the result that the termination of Ms Banerji’s employment with the Commonwealth for breaching the APS Code of Conduct was not reasonable administrative action taken in a reasonable manner with respect to her employment within the exclusion in s5A(1) of the SRC Act.

Decision

The High Court of Australia upheld Comcare’s appeal, set aside the decision of the Tribunal, and substituted a decision to the effect that Comcare is not liable to pay compensation to Ms Banerji.

In do so, the majority, comprised of Kiefel CJ, Bell, Keane and Nettle JJ held that ss10(1), 13(11) and 15(1) of the PS Act did not impose an unjustified burden on the implied freedom of political communication. Furthermore, it was found that the termination of the Ms Banerji’s employment was not unlawful.

The Commonwealth had conceded that the provisions of the PS Act did impose an effective burden on the implied freedom of political communication. However, the High Court proceeded to consider whether that burden was justified according to the two part test of (1) whether the impugned law is for a legitimate purpose consistent with the system of representative and responsible government mandated by the Constitution and, (2) if so, whether that law is reasonably appropriate and adapted to the achievement of that objective.

The Court observed at [31] that:

[t]here can be no doubt that the maintenance and protection of an apolitical and professional public service is a significant purpose consistent with the system of representative and responsible government mandated by the Constitution.

The Court also held that the provisions were reasonably appropriate and adapted or proportionate to their purpose and accordingly did not impose an unjustified burden on the implied freedom.

Accordingly, in circumstances where the provisions of the PS Act which formed the basis of the decision to terminate Ms Banerji’s employment were not invalid, the majority considered that the termination of the applicant’s employment was not unlawful and constituted ‘reasonable administrative action taken in a reasonable manner in respect of the employee’s employment’. Therefore the exclusion in s5A of the SRC Act applied such that Comcare was not liable for the psychological injury suffered as a result of that action.

What does it mean?

Essentially, while freedom of political of opinion is a matter of importance, it is not an unequivocal right that cannot be curtailed by other laws. The High Court acknowledged that importance in its judgment, but did not consider it outweighed the importance of good and stable government, part of which relies on a public service which is impartial and not seen to be influenced by the political opinions of its members.

This judgment will have direct application to the entire Australian Public Service and claims under the SRC Act. Public servants should continue to be especially careful of their social media use, noting that anonymity or use of an online alias does not prevent comments from being attributed to them.

Similarly, Commonwealth agencies can be confident in pursuing investigations and imposing sanctions for employees found to have breached the APS Code of Conduct as a result of social media use. Such action may be relied on as ‘reasonable administrative action taken in a reasonable manner in respect of the employee’s employment’ in claims under the SRC Act.

It remains to be seen how the judgment will be applied to employment in the private sector.

The case will serve as an important lesson to all employees that there is no unequivocal freedom of speech and employers may implement policies to determine how employees communicate on social media. In this era, even anonymous posting can be readily traced back to an individual and, eventually, their employer.