Express law No. 279

8 August 2019

Comcare v Banerji [2019] HCA 23

The High Court has held that the requirements in the APS Code of Conduct (the Code) for APS employees to behave at all times in a way that upholds the APS Values, in particular the APS Values about an impartial and apolitical public service, do not infringe the implied freedom of political communication. The Court's decision made it clear that anonymous comments and comments made outside work by APS employees, including on social media, can amount to a breach of the Code in some circumstances. The decision also makes clear that because a decision-maker is required to act reasonably, there will be no infringement of the implied freedom of political communication when making a decision under s 15(1) of the Public Service Act 1999 (PS Act) in relation to a sanction for a breach of the Code.

Background

The respondent, Ms Banerji, was employed by the Australian Government Department of Immigration and Citizenship between 2006 and 2012. While employed by the Department, Ms Banerji made numerous tweets criticising members of the government, government policy and the Department (amongst others). Her Twitter account did not identify her name or where she worked. Following an investigation, the Department determined that Ms Banerji was the author of the tweets and her actions had resulted in her breaching the Code as set out in s 13 of the PS Act. The Department subsequently terminated Ms Banerji's employment.

Ms Banerji suffered a psychological injury as a result of the termination of her employment. She claimed compensation for that injury under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). Comcare refused her claim on the basis that termination of her employment was 'reasonable administrative action taken in a reasonable manner' and that compensation for the resulting injury is not payable under the SRC Act.

Ms Banerji successfully sought merits review of Comcare's decision in the Administrative Appeals Tribunal (AAT). The AAT held that the termination of Ms Banerji's employment unacceptably infringed the implied freedom of political communication and was therefore neither lawful, nor reasonable administrative action. Comcare appealed the AAT's decision to the Federal Court. The Commonwealth Attorney-General intervened in the Federal Court proceeding and removed the appeal to the High Court.

The High Court's decision

In 4 concurring judgments, the High Court held that the termination of Ms Banerji's employment under s 15(1)(a) of the PS Act for a breach of the Code was not invalid and that the PS Act did not infringe the implied freedom of political communication (the implied freedom). Consequently, Ms Banerji was not entitled to compensation under the SRC Act for any injury she suffered as her dismissal was 'reasonable administrative action taken in a reasonable manner'.

The plurality judgment of Kiefel CJ, Bell, Keane and Nettle JJ reaffirmed that the implied freedom of political communication is not a personal right of free speech. Rather, it is a restriction on the Commonwealth's power to enact laws. This means that the relevant question when considering whether Ms Banerji's dismissal was invalid was not whether her political free speech had been limited, but whether the relevant provisions of the PS Act concerning the Code, and sanctions for breaching the Code, were an unjustifiable restriction on political communication when viewed as a whole.

Ms Banerji put forward 3 arguments as to why her dismissal was invalid:

1. That properly constructed, the requirement in s 13(11) of the PS Act for APS employees to 'behave at all times in a way that upholds the APS Values' – including behaving impartially and apolitically – did not extend to situations where an APS employee communicated anonymously and with no immediate connection to APS employment.
2. Alternatively, if the Code did regulate such conduct, then sanctions imposed under the PS Act for breaching the Code in this situation were invalid by reason of infringing the implied freedom.
3. As a further alternative, if the relevant PS Act provisions were not invalid for infringing the implied freedom, the decision to terminate Ms Banerji's employment under s 15(1)(a) of the PS Act was invalid because the decision-maker did not take the implied freedom into account before making the decision.

Each of these arguments was rejected.

In relation to argument 1, their Honours considered that since Ms Banerji had not put this argument in the AAT proceedings, it was not appropriate for the Court to consider it now. However, their Honours noted (at paragraphs [23] and [24]) that there was no reason why purportedly anonymous communications by APS employees could not amount to a breach of the Code. Specifically:

• Consistent with the guidance given to APS employees by the Australian Public Service Commission (APSC), Ms Banerji's situation demonstrated that employees who post material online anonymously can often later be identified.
• Material which is inappropriately critical of the APS or members of Parliament and which is later discovered to have been published by an APS employee can damage the integrity and reputation of the APS.
• Material published by an APS employee critical of the APS can be detrimental to the APS even if the employee is never identified.

In relation to argument 2, their Honours considered that since Ms Banerji had, in effect, conceded that her conduct had breached the Code and that her dismissal was otherwise warranted, her argument that Parliament was prevented from proscribing this conduct because of the implied freedom was a 'remarkable proposition' (at paragraph [28]).

Their Honours found that although the Code, and the PS Act more broadly, did burden political communication, they were not contrary to the implied freedom. This was because:

• The purpose of the relevant provisions of the PS Act was legitimate, in that the maintenance of an apolitical and impartial public service was consistent with the system of government established by the Constitution.
• The restrictions in the PS Act were otherwise appropriate and adapted to achieving this legitimate purpose – that is, of maintaining an impartial and apolitical public service. In particular, their Honours noted that the range of penalties that could be imposed under s 15(1) of the PS Act reflected a 'reasoned and focused response to the need to ensure that the requirements of upholding the APS Values … trespasses no further upon the implied freedom than is reasonably justified' (at paragraph [42]).

In relation to argument 3, their Honours considered that given the relevant provisions of the PS Act did not infringe the implied freedom, there will be no risk of infringing the implied freedom when making a decision in relation to a sanction for a breach of the Code, although a decision-maker is required to act reasonably. Their Honours affirmed that under s 15(1) there is a legal requirement that the penalty be proportionate to the nature and gravity of the misconduct and the personal circumstances of the employee in question (at paragraph [44]) and the decision-maker's task 'is to impose a penalty which accords to the nature … of the subject breach and the personal circumstances of the employee' (at paragraph [45]).

The separate concurring judgments of Gageler J, Gordon J and Edelman J largely agreed with the reasons and orders of the plurality judgment. In particular:

• Gageler J noted that the PS Act simply required a person who is an APS employee to moderate their political views for as long they were an APS employee in order to avoid, at worst, dismissal from the APS (at paragraph [95]). His Honour considered that the provisions of the PS Act did not infringe the implied freedom as they were directed at achieving an apolitical public service. His Honour also noted that anonymous communication by APS employees was capable of undermining the professionalism and impartiality of the APS through affecting the confidence and trust that APS employees will not anonymously communicate partisan political comment and that the actual observance of impartiality by an APS employee is even more important than the appearance of impartiality (at paragraph [105]).
• Gordon J noted that an apolitical and impartial APS was necessary as part of furthering the structure of responsible government established by the Constitution. The provisions of the PS Act in issue were directed at this end. The provisions did not regulate all public comments of APS employees: only those comments that failed to uphold the integrity and reputation of the APS (at paragraph [140]).
• Edelman J considered that the relevant provisions of the PS Act did not prevent an APS employee from making political comment or participating in the political community generally. Rather, the provisions were directed at comments that sufficiently imperil the trust between the APS, Parliament and the public (at paragraph [182]). In this context, the provisions did not infringe the implied freedom as they were directed at maintaining the constitutional significance of an apolitical public service.

Implications for decision makers

Decision makers responsible for determining whether comments by an employee are a breach of the Code will need to carefully to consider all the circumstances to assess whether the employee's conduct is inconsistent with the APS Values about an impartial and apolitical public service and is a breach of the Code. The Court discussed a range of circumstances where political comment is made, some of which would be acceptable and others that would be capable of being found to be a breach of the Code.

The Court referred with approval to the content of various guidance documents issued by the APSC and other agencies about the proper conduct of APS employees, including guidance about the need to act consistently with the APS Values concerning an impartial and apolitical public service in the use of social media.

As noted, sanction decision-makers must ensure that any sanction is proportionate to the nature and gravity of the misconduct and the personal circumstances of the employee in question.

Significance of the decision

The decision affirms that the requirements in the APS Code of Conduct for APS employees to behave at all times in a way that upholds the APS Values are valid and do not infringe the implied freedom of political communication. It also makes clear that:

• Anonymous comments made by APS employees can amount to a breach of the Code in some circumstances.
• Provided they act reasonably, decision-makers are not required to separately consider any potential application of the implied freedom when making a decision for a breach of the Code.

Text of the decision is available at: http://eresources.hcourt.gov.au/downloadPdf/2019/HCA/23

AGS acted for the Attorney-General and Comcare in this matter.

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