Public servants all atwitter: High Court has its say on “free speech”

This article was first published in the September 2019 edition of the Law Society of NSW Journal. 

In the June 2019 edition of the Law Society of NSW Journal, we considered the tension between an employee expressing views contrary to the employer’s interests and the maintenance of the employment relationship.

As discussed in that article, in the private sector, absent an express right of protection in an industrial instrument, freedom of speech is secondary to complying with an employer’s behavioural expectations in an Employer’s Code of Conduct or social media policies. In the public sector, however, there was perceived to be the added protection of an implied freedom of political communication, the extent of which was the subject of a pending High Court decision.

The High Court, in Comcare v Banerji [2019] HCA 23, has now confirmed that the values and behavioural expectations of the Australian Public Service (‘APS’), as contained in the Public Service Act 1999 (Cth) including the APS Code of Conduct (‘Code’), do not offend the implied freedom of political communication. As a consequence, the Commonwealth was entitled to terminate the employment of an employee, Michaela Banerji, for a series of anonymous ‘tweets’ critical of her employer and others.

The issue

The question before the High Court was whether the Code and APS Values, contained in the Public Service Act 1999 (Cth), imposed an unjustifiable burden on the implied freedom of political communication with the effect that the termination of Ms Banerji’s employment was not reasonable administrative action taken in a reasonable way. The High Court was not otherwise required to consider the merits of whether Ms Banerji’s conduct warranted dismissal under the Code.

Nonetheless, in the context of the ongoing controversy about ‘freedom of speech’ in employment, the case is a significant development that continues the acceptance of an employer’s legitimate interest in the ‘out of hours’ conduct of its employees and the employer’s behavioural standards.

The facts

Ms Banerji was employed by the Department of Immigration and Citizenship in 2006. From 2012, she used a Twitter account to send 9000 ‘tweets’ relevant to the Department, many of which were critical of the Government and its policies, the Department generally and Government and Opposition figures. The account – ‘@LaLegale’ – did not bear her name or reveal her employer.

The APS received two material complaints alleging Ms Banerji was using social media contrary to the Code. The Code requires, in short, that employees must disclose and take reasonable steps to avoid conflicts of interest, and uphold the ‘good reputation’ of the APS ‘at all times’. The APS Values relevantly provide that the APS is ‘apolitical, performing its functions in an impartial and professional manner’, and that it delivers services ‘fairly, effectively and impartially’.

After the APS investigated the second internal complaint made against Ms Banerji, and after legal proceedings commenced by Ms Banerji in the Federal Circuit Court seeking to prevent the disciplinary process, the Department terminated her employment in September 2013 for breaching the Code.

In October 2013, Ms Banerji sought compensation because her firing had caused depression and anxiety. Comcare, the statutory insurer, rejected the claim on the basis that the termination was reasonable administrative action taken in a reasonable manner, and hence was not compensable under section 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

The decision of Comcare to reject the claim was reviewed by the Administrative Appeals Tribunal (‘AAT’). The AAT found that Ms Banerji’s dismissal was not reasonable administrative action, and hence that she was entitled to compensation: Banerji and Comcare (Compensation) [2018] AATA 892. The AAT held that the Code’s prohibition on anonymous criticism went too far in seeking to achieve an apolitical public service, and that it therefore imposed an unjustifiable burden on the implied freedom of political communication.

It was critical to the AAT’s decision that Ms Banerji’s comments were made anonymously. The AAT indicated that a law prohibiting ‘open’ criticism would not have breached the implied freedom, even though it extended to conduct outside of work.

At the instance of the Attorney-General of the Commonwealth, Comcare’s appeal was remitted to the High Court.

High Court sets aside AAT decision

The High Court unanimously held that there was no unjustifiable burden on the implied freedom, and that the decision of the AAT should therefore be set aside.

Joint judgment of Kiefel CJ, Bell, Keane and Nettle JJ

In a joint judgment, Chief Justice Kiefel and Justices Bell, Keane and Nettle confirmed that the implied freedom of political communication is not a personal right of free speech. It is a restriction on legislative power that extends only so far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution. It will therefore invalidate laws that restrict communication about government and political matters, unless the restrictive law achieves a legitimate purpose in a proportionate way. The inquiry is on the effect of the particular legislation as a whole, and not merely by reference to an individual’s right to participate in political communication.

The freedom is also limited. It will not prevent legislation where the restriction on communication is proportionate to the need to achieve a ‘legitimate purpose’. The High Court readily found that it was a legitimate purpose of the Code to maintain an ‘apolitical and professional public service’, and that the Code was ‘reasonably appropriate and adapted’ to achieve that purpose.

The Court also held that there was no ‘obvious and compelling alternative’ that would have imposed a lesser restriction on political communication. In so holding, the Court rejected the submission that allowing for anonymous criticism would be an obvious alternative. Importantly, the Court said that anonymous communications could tarnish the reputation of the APS whether or not the author’s identity was eventually discovered. The pitfalls of social media were emphasised, with the Court stating that anyone who posts material on social media ‘should assume that, at some point, his or her identity and the nature of his or her employment will be revealed’ (at [24]).

The Court further found that the benefit of the Code in protecting the APS outweighed the restriction on communication, and that the penalty for breach of the Code ‘trespasses no further upon the implied freedom than is reasonably justified’ (at [42]).

Critically, Ms Banerji did not argue that the Commonwealth Parliament lacked the legislative power to enact laws in the form of the Code. Further, the way in which the case was run led the Court to treat Ms Banerji as having conceded that her conduct failed to uphold the APS Values and that, but for the implied freedom that she asserted, the sanction of dismissal was warranted. In language that resonates with the primacy of an employer’s behavioural expectations, the Court stated (at [28]):

‘In the result, the respondent’s implied freedom argument amounts in effect to saying that, despite the fact that her conduct in broadcasting the “anonymous” tweets was conduct which failed to uphold the APS Values and the integrity and good reputation of the APS, Parliament was precluded from proscribing the conduct because its proscription imposed an unjustified burden on the implied freedom of political communication. To say the least, that is a remarkable proposition.’

Separate judgments of Gageler, Gordon and Edelman JJ

Justices Gageler, Gordon and Edelman issued separate judgments which agreed with the joint judgment but emphasised different aspects of the appeal.

Justices Edelman and Gordon both supported the legitimacy of the Code by reference to its focus on an employee’s conduct in the context of the employee’s behavioural obligations. Their Honours separately observed that the Code did not preclude political communication, although Justice Edelman referred to an ‘ill-defined’ boundary between acceptable political opinions and unacceptable expressions of political opinions (at [182]).

Insofar as the maintenance of the employment relationship was concerned, Justice Edelman noted the line is drawn when the conduct of the public servant imperils the required trust in the APS. His Honour distilled six factors of particular significance to an assessment of whether the relevant trust is sufficiently imperilled, namely:

• ‘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 comment would be disseminated broadly;
• whether the public servant intended or could reasonably have foreseen that the comment 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 their duties or responsibilities’ (at [183]).

Implications

As Justice Edelman colourfully observed, the restriction on public servants making public comments is not as prescriptive as it once was, and it ‘no longer turns public servants into lonely ghosts. But, properly interpreted, it still casts a powerful chill over political communication’ (at [164]).

The full extent of the cold snap is unclear. At the very least, the decision affirms that, like an employee in the private sector, a public sector employee cannot contravene the behavioural expectations of their employer and expect immunity under the guise of exercising freedom of speech. The employer’s reasonable and lawful instructions about an employee’s conduct, typically expressed in the form of a Code of Conduct and associated social media policy, remain paramount – for so long as the employee and employer choose to remain in an employment relationship.

The difficulty of course is that, here, the employer (being the Commonwealth) has a rather broad remit. Public servants also regularly use social media to engage in the political debate. The effect of the decision has therefore been met with widespread criticism and concern about the continuing encroachment on individual rights.

Ultimately, however, the High Court decision is consistent with the numerous cases before it that support the right of an employer to take issue with public comments that could damage the employer’s interests and the employment relationship. That relationship, said to be personal and built on mutual trust and confidence, is a voluntary one. Again, the case demonstrates that the freedom to publicly express personal views is no more powerful than the freedom to end an employment relationship.

This article was first published in the September 2019 edition of the Law Society of NSW Journal.