Comcare v Banerji [2019] HCA 23

High Court decision finds public servant’s anonymous twitter comments in breach of APS Code of Conduct.

Introduction

On 7 August 2019, the High Court delivered a landmark decision concerning public servants and their rights to freedom of political expression. In a unanimous decision, the court held the dismissal of Michaela Banerji in 2013 was not unjustified, rejecting the respondent’s arguments that the provisions do not apply to ‘anonymous’ communication.

The High Courts ruling overturned a decision made by the Administrative Appeals Tribunal that found Banerji’s termination based on her political views was unjustified.

Banerji’s argument went from one pertaining freedom of political expression to seemingly trying to find a loophole in statutory legislation, arguing that the Public Service Act does not apply to ‘anonymous’ communication.

Facts

• Michaela Banerji, a former employee of the Department of Immigration and Citizenship, used an anonymous Twitter account named “@LaLegale”. to post 9,000 Tweets which were critical of the government and its policies.
• Provisions in laid out in the Public Service Act require APS employees to behave in a way that “upholds the APS Values and the integrity and good reputation of the APS” because the APS is “apolitical” and politically impartial.
• Banerji’s identity under @LaLegale was uncovered and her employment was terminated for violating s 13(11), 10(1) of the public service act.
• Banerji made a workplace injury claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for a psychological injury resulting from the termination of her employment.
• Comcare rejected the claim on the basis that the respondent’s injury was suffered as a result of such action. That decision was set aside by the Administrative Appeals Tribunal, on the basis that the Code trespassed upon Banerji’s implied freedom of political communication.
• Comcare appealed.

Issues

The first issue dealt with by the courts was whether or not the Public Service Act applied to anonymous communication. The courts rejected the respondent’s argument on the basis that the matter would have likely ceased in the earlier tribunal.

Secondly, their honours considered the implied freedom argument. Kiefel CJ, Bell, Keane and Nettle JJ found that there had been no unjustified burden on the implied freedom. Geiger J also agreed that the law did not impose an unjustified burden on the implied freedom.

Held

The High Court found that ss 10(1) and 13(11) does affect the ability of Australian public servants to engage in public comment on Government and political matters, therefore limiting their freedom of political expression.

Furthermore, they found that that burden had a legitimate purpose consistent with a constitutional system of government and separation of powers.

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• Case Summaries