It’s the vibe of the thing: Newfound limits on Constitutional protection of political speech at work

In recent years, a growing body of case law has highlighted the circumstances in which an employee may be disciplined or dismissed for their posts on social media. In a landmark decision delivered last week in Comcare v Banerji [2019] HCA 23 (Banerji), the High Court of Australia considered the extent to which a Commonwealth public servant's political posts on social media, even when anonymous, remain unprotected by the implied freedom of political communication under the Australian Constitution.

 

What happened?

The employee in these proceedings, Ms Banerji, commenced employment with the Australian Federal Government in 2006, and for a number of years worked in the employ of the Department of Immigration and Citizenship (now known as the Department of Home Affairs) (Department).

During her time working at the Department, Ms Banerji posted regularly on Twitter under the Twitter handle "LeLegale", with over 9,000 tweets being made. A number of those tweets were critical of the Department and its policies, as well as various political figures of the day.

Following an internal investigation into the posts, a finding was made that Ms Banerji had used social media in contravention of the Australian Public Service (APS) Code of Conduct. Following an invitation to provide a response to a proposed sanction of termination of employment, Ms Banerji commenced proceedings in the Federal Magistrates Court of Australia (now known as the Federal Circuit Court of Australia) seeking interim and final injunctions restraining the Department from proceeding to terminate her employment.

As Ms Banerji failed to obtain an injunction in those proceedings, her employment was terminated for misconduct on 27 September 2013. That matter ultimately settled before a final determination as to the lawfulness of her dismissal was made at hearing.

The Workers Compensation Claim

On 18 October 2013, Ms Banerji lodged a workers compensation claim for post-traumatic stress disorder which she claimed to have suffered as a result of the events surrounding her dismissal.

This claim was rejected by a delegate of Comcare, the insurer, and reaffirmed by another delegate on the basis that the termination of her employment was reasonable administrative action taken in a reasonable manner, and so fell outside the meaning of "injury" under section 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRCA).

The matter then proceeded to the Administrative Appeals Tribunal (AAT), which considered that the use of the Code as the basis for the termination of Ms Banerji's employment infringed upon her implied freedom of political communication.1 Accordingly, the AAT considered that termination of her employment on the basis of her breach of APS' values and employment principles did not constitute "reasonable administrative action" for the purposes of the SRCA.

On this basis, the matter proceeded on appeal to the High Court of Australia in Banerji.  In its findings, a critical question the High Court needed to consider was whether section 13(11) of the Public Service Act 1999 (Cth) (PS Act), which requires all APS staff to uphold APS Values and Employment Principles, might amount to a burden on the implied right to freedom of political communication where it restricts the ability of public sector employees to engage in political debate.

What did the High Court find?

In its judgement, the High Court affirmed its position in Brown v Tasmania (2017) 261 CLR 328 that the implied freedom of political communication is not a personal right of free speech – it extends only so far as is necessary to protect the system of representative and responsible government mandated by the Constitution.

While the High Court acknowledged that the PS Act placed some burden on the implied political freedom of communication, it considered this to be justified on the basis that the regulation of employee conduct, even where it affected the expression of political views, was necessary for the maintenance and protection of an apolitical and professional nature of the public service, given its importance in achieving a system of representative and responsible government.

Significantly, the High Court considered this to be so even where the social media posts of Ms Banerji were anonymous and made largely outside working hours, stating:

"…Confidence cannot exist without trust, and trust cannot exist without assurance that partisan political positions incapable of being communicated with attribution will not be communicated anyhow under the cloak of anonymity…The confidence of the Government, the Parliament and the Australian public in the APS as an apolitical and professional organisation would be undermined…were an APS employee free to engage with impunity in clandestine publication for praise for or criticism of a political policy…"2

Takeaway

This decision is significant to public sector employers and staff in that it illustrates the extent to which an APS employee's social media posts relating to political subject matter, even when anonymous and made outside of ordinary work hours, may be in breach of APS Values and Employment Principles and justify that employee's dismissal – certainly, the implied freedom of political communication will offer little obstacle to dismissal being effected.

Whether a dismissal in those circumstances may still be considered 'unfair' for the purposes of the Fair Work Act 2009 (Cth) is an entirely different question.

Notwithstanding this, while case law in recent years has made clear that an employee's activity on social media outside of working hours may justify their dismissal where it is sufficiently serious, this case takes this position one step further in the case of Commonwealth public servants – it makes clear that APS staff may also be liable for the expression of their political views online in a private capacity, even where this amounts to an endorsement, rather than a criticism, of the policies of the Government of the day.

While Banerji was confined in its application to Commonwealth public servants whose conduct is regulated by the PS Act, it should also be noted that State equivalents to the PS Act also exist – in NSW, for example, Part 2 of the Government Sector Employment Act 2013 (NSW) (GSE Act) sets out a number of Government sector core values that NSW public staff are expected to follow. Further, it recognises an objective that the sector be apolitical and professional in implementing decisions of the Government of the day. These same values and objectives are reiterated in the Code of Ethics and Conduct for NSW Government sector employees.

Notwithstanding the fact that this case may have little or no direct impact on private sector employees and employers, there can be little doubt that the consequences of this decision will generate further public, political and academic debate regarding the blurring line between 'work' and 'personal life' (which is already, of course, the subject of much discussion) and the adverse consequences suffered by employees as this line continues to shift and the law plays catch-up.

The Employment Group at McCabe Curwood regularly advise both public and private sector employers on all stages of the disciplinary and dismissal process, including the basis upon which an employer may have grounds to discipline or dismiss an employee on the basis of their conduct. Should you have any questions regarding this subject, please don't hesitate to contact us.


1 Banerji and Comcare (Compensation) [2018] AATA 892, [120].
2 Comcare v Banerji [2019] HCA 23, [105].

Contributors

Ethan Aitchison Law Graduate