16 August, 2019
The High Court of Australia's decision in Comcare v Banerji clarifies the extent to which a public sector employer can restrict their employees' ability to freely and publicly express their political views. This alert considers the possible implications for public and private sector employers.
What public sector employers need to know
- The High Court held that public sector employment legislation can lawfully regulate a public servant's private conduct to ensure that the apolitical and impartial nature of the public service is preserved.
- Public sector employers need to be careful when seeking to manage such conduct and the appropriateness of disciplinary action will depend on the particular circumstances of each case
What all employers need to do
- While important, this case does not resolve questions around the lawfulness of disciplinary action taken by employers in connection with an employee expressing a political or religious opinion. It is therefore of less immediate relevance to private sector employers.
Why was Ms Banerji dismissed?
The Department of Immigration and Citizenship (as it was then known) terminated Ms Banerji's employment on the ground that her tweets breached the Australian Public Service Code of Conduct. The APS Code of Conduct relevantly requires employees to act at all times in a manner that upholds the APS Values (including that the APS is apolitical and impartial) and the integrity and good reputation of the employee's agency and the APS.
Ms Banerji had been employed by the Department since 2006 but did not join Twitter until early 2011 when she began posting tweets from the anonymous Twitter handle '@LaLegale.'
The tweets that were regularly broadcast from this account were often highly critical of the policies, decisions and legislative agenda of both the Commonwealth Government and of individual Ministers, Members of Parliament and senior public servants. Relevantly, Ms Banerji's criticism was often directed at the border protection policies of both the Government and Opposition, particularly in relation to the treatment of asylum seekers and refugees. The High Court identified as many as 9,000 tweets broadcast by Ms Banerji that criticised employees of, or decisions made by, the Department.
Ms Banerji did not, however, disclose any confidential information in any of her communications and her tweets were mostly posted outside of work hours using her personal phone.
After receiving numerous complaints about her social media posts, the Department investigated Ms Banerji's conduct and found that Ms Banerji had breached the APS Code of Conduct.
After being informed of the outcome of the investigation and being given an opportunity to show cause why she should not be dismissed, Ms Banerji made an unsuccessful application to the Federal Circuit Court for an injunction to prevent the Department from terminating her employment. Following the Federal Circuit Court's decision to reject Ms Banerji's application for an injunction, the Department terminated her employment in September 2013.
The basis for these proceedings?
After her dismissal, Ms Banerji lodged a workers' compensation claim with Comcare. Ms Banerji's claim alleged that the events leading up to and including the termination of her employment had caused her to suffer an aggravation of an underlying psychological condition. Comcare refused Ms Banerji's claim on the basis that the termination of employment constituted reasonable administrative action taken in a reasonable manner. Ms Banerji ultimately sought merits review of this decision in the Administrative Appeals Tribunal.
The AAT found in favour of Ms Banerji and overturned Comcare's refusal decision. The AAT determined that the manner in which the APS Code of Conduct was utilised by the Department to justify Ms Banerji's dismissal "unacceptably trespassed on the implied freedom of political communication” and therefore her termination was not "reasonable administrative action". The Tribunal considered that because Ms Banerji's comments were not attributable to her, due to their anonymous character, the imposition of sanctions did not constitute a proportionate and appropriate application of a law designed to preserve the APS's apolitical and impartial status.
Comcare appealed the Tribunal's decision to the Federal Court of Australia, and the matter was ultimately removed to the High Court.
The arguments before the High Court
The Commonwealth's argument centred on the proposition that the Tribunal's decision was predicated on the incorrect conclusion that the implied freedom of political communication conveyed a personal right for individuals to challenge executive decisions of Commonwealth authorities made under Federal legislation. The Commonwealth argued that the proper interpretation of the implied freedom was as a limit on legislative power and the appropriate question was whether the relevant provisions of the Public Service Act 1999 (Cth) (being parts of the APS Values and the APS Code of Conduct) are invalid. The Commonwealth contended that the Act was valid, and that actions taken by the Department were consistent with the implied freedom.
Ms Banerji argued that the APS Code of Conduct could not be interpreted as restricting the kind of behaviour engaged in by Ms Banerji, as to do so would be to read the provisions in a manner that is inconsistent with the implied freedom of political communication. Ms Banerji also contended that the exercise of the Department's discretion under the Act to terminate an employee's employment for breaching the APS Code of Conduct was inconsistent with the implied freedom and involved a failure to consider a relevant matter (being the implied freedom) and therefore invalid and unlawful.
The High Court's decision
In a unanimous decision the High Court upheld the Commonwealth's appeal, quashed the AAT's decision and re-affirmed Comcare's original decision to refuse Ms Banerji's workers' compensation claim.
The joint majority re-affirmed that the implied freedom does not operate as a personal right but instead acts as a restraint on the exercise of Commonwealth power under the Constitution. Ms Banerji was therefore required to prove that the law itself was inconsistent with the implied freedom and not that the Department impugned the freedom by exercising the discretion conferred on it by the Act.
All judges found that while the Act does burden the implied freedom of political communication it is nevertheless reasonably appropriate and adapted to a legitimate objective – the maintenance of an apolitical public service as part of the system of representative and responsible government. The Court also saw no alternative means of achieving that objective which was a lesser burden on the implied freedom of political opinion.
The separate judgments of Justices Gageler, Gordon and Edelman, who agreed with the orders of the majority, traversed in more detail the historical bases for the relevant provisions in the Act (and preceding provisions) and emphasised the importance of an apolitical and impartial public service to the maintenance of Australia's system of government.
The majority further found that the anonymity of Ms Banerji's tweets was irrelevant.
Implications of the decision
Though it is capturing attention, the Banerji decision does not change the law on the implied freedom of political communication in an employment context. The decision re-affirms the principle that the implied freedom is not a personal right. It also reaffirms that the conduct of public servants can be restricted to the extent that those restrictions are necessary for the maintenance of the independence and impartiality of the public service.
The Banerji decision does not resolve questions around the scope of protections against discrimination on the ground of political opinion or religion in section 351 of the Fair Work Act 2009. Uncertainty in relation to the scope of these protections remains to be definitively resolved in other cases.
For further information, please contact:
Jon Lovell, Partner, Ashurst
jon.lovell@ashurst.com
