Implied freedom of political communication justifiably restricted by the constraints on APS employees in their public comments.

On 7 August 2019, the High Court of Australia handed down its decision in Comcare v Banerji, confirming that the implied freedom of political communication was justifiably restricted by the Australian Public Service (APS) Code of Conduct and related legislation.

Ms Banerji was an employee of the then Department of Immigration and Citizenship and under the pseudonym LaLegale had posted a number of tweets critical of the Government and of the Department’s policies and actions in relation to immigration generally and particularly offshore immigration detention centres. The posts were sent from a personal device and almost entirely in her own time. The Department terminated her employment for breach of the APS Code of Conduct and the Public Service Act 1999 (Cth), which both provide in effect that APS employees must uphold APS’ values, integrity and reputation and should not express political views (because that might create the reality or appearance of conflicts of interest between their views and the obligations of their employment).

Ms Banerji appealed Comcare’s refusal to pay compensation for the psychological condition developed following her dismissal. Under Australian worker compensation laws, no compensation is payable if and to the extent that a work-related injury is caused or aggravated by reasonable administrative action by the employer. Before the Administrative Appeals Tribunal Ms Banerji successfully relied on her right to freedom of political speech, although notably she was unsuccessful on these same grounds when she sought an injunction before the Federal Circuit Court in 2013 to stop the termination of her employment. The Federal Circuit Court found there was no unfettered implied right of political expression or communication and even if there were such a right, “it does not provide a license [allegedly] to breach a contract of employment”. The Federal Circuit Court decision cited the obvious differences between the Australian constitution and that of the US or Germany which expressly provide a right to freedom of expression.

The High Court found that the AAT erred in its approach by relying on Canadian and US constitutional jurisprudence. The Court ruled that the Australian implied freedom of political communication is not equivalent to a personal right of free speech.

The effect of the implied freedom of political communication is that the legislature can restrict it so far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution. In contrast to a personal right, when considering any alleged unjustified burden on this implied freedom, the effect of the law on political communication as a whole is the relevant consideration.

With this in mind, the APS Code of Conduct and Public Service Act were found to be suitable, necessary and adequate restrictions on political communication by APS employees, reasonably justified by the need to maintain and protect an overtly apolitical public service. Despite Ms Banerji’s arguments to the contrary, the High Court was clear that the restrictions imposed to uphold the values and integrity of the APS must include anonymous communications, as here.

The case has attracted a great deal of publicity within and outside Australia, but ultimately the outcome is actually not that surprising – if you post critical tweets which go to the heart of what your employer does, and especially if there is a governing Code of Conduct and legislation prohibiting your doing so, what do you expect? Ms Banerji’s union described the outcome as “Orwellian censorship because of where [she] works“, but there is nothing new in the possibility of sanction for social media comments critical of your employer. Ms Banerji’s lawyer suggested that this means that “any criticism of an employer’s position on some politically relevant social issue” could justify dismissal but that seems to us to go too far – the problem for his client here was that the “politically relevant issue” was the whole business of her employer and that she had knowingly (hence the use of a pseudonym) breached clear rules about the expression of certain opinions.