Policy preventing public servants from voicing political opinions is constitutional, High Court holds

Comcare v Banerji [2019] HCA 23

Summary

In a recent case, the High Court of Australia has confirmed there is not an unfettered right to the implied freedom of political communication and that Australian Public Service (APS) employees must at all times behave in a way that upholds the values of the APS, which extends to comments made anonymously on social media.  

Facts

An employee who was working at the Department of Immigration and Citizenship (Department) broadcast more than 9,000 tweets that were critical of the Department and its employees, policies and administration, as well as Government and Opposition immigration policies and politicians. The tweets were made anonymously, and mostly outside of working hours.

A complaint was made to the Workplace Relations and Conduct Section of Department (WRCS) alleging that the employee was inappropriately using social media in contravention of the APS Code of Conduct. After reviewing the complaint, the WRCS did not proceed with a formal investigation.

The WRCS then received a second, more detailed complaint and initiated an investigation into whether the employee’s conduct gave rise to breaches of the APS Code of Conduct (Code). Following an investigation, the Authorised Delegate determined that the employee had breached the Code and proposed a sanction of termination of employment. The employee was given an opportunity to respond. The Authorised Delegate then met with the employee and the employee admitted to having broadcast tweets.

The employee sought an injunction in the Federal Magistrates Court of Australia to restrain the termination. However, the employee was subsequently given notice that her employment was to be terminated under s 15(1) of the Public Service Act 1999 (Cth) (the Act) and the proceedings were settled.

The employee lodged a claim for worker’s compensation for injury resulting from the termination of her employment. This was rejected by Comcare on the basis that the termination of her employment was “reasonable administrative action taken in a reasonable manner” (at [11]).

Decision

The High Court of Australia unanimously held that the impugned provisions did not impose an unjustified burden on the implied freedom of political communication, and the termination of employment was not unlawful.

Kiefel CJ, Bell, Keane and Nettle JJ reiterated that the implied freedom of political communication is not a personal right of free speech and is a restriction on legislative power (at [20]).

They considered the provisions of the Act, and in particular, section 13(11) which provides that: “An APS employee must at all times behave in a way that upholds the APS Values and integrity and good reputation of the APS.” Their Honours held that the APS Values’ purpose of establishing "an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public" was legitimate and consistent with the system of representative and responsible government (at [31]).  

The guidelines to APS employees provide that anyone who posts material online (particularly on social media websites) should assume that his or her identity and the nature of his or her employment will be revealed (at [24]). Even though the tweets were anonymous, they found the communications were at risk of ceasing to be anonymous and could damage the integrity and good reputation of the APS as an apolitical and professional public service (at [36]).

It was also relevant that under the Code, not every employee of the APS who commits a breach of the Act by broadcasting “anonymous” communications is liable to be dismissed. If a breach is found, the penalty is proportionate to the nature and gravity of the employee’s misconduct (at [40]).

In separate judgments, Gageler, Gordon and Edelman JJ agreed with the majority.

Gageler J considered whether the Act infringes on the constitutionally implied freedom of political communication. He said that the burden is justified if two conditions are satisfied:

• the object of the impugned provisions is consistent with the constitutionally prescribed system of representative and responsible government; and

• that the impugned provisions are reasonably appropriate and adapted to achieve that identified object in a manner consistent with the constitutionally prescribed system of government (at [53]).

Gageler J found that the Act was consistent with the constitutionally prescribed system of representative government and promotes responsible government. 

Gordon J held that the requirement to uphold the apolitical nature, integrity and good reputation of the APS is a defining characteristic of representative and responsible government. However, this does not impose an unjustified burden on the implied freedom of political communication (at [111]). Implied freedom should be a case-by-case approach and there is no “one size fits all approach” (at [161]).

Edelman J said the implied freedom in the Constitution is highly constrained (at [164]). Edelman J found that section 13(11) of the Act and other APS values do not prevent public service employees from making political comments on social media, provided that the comments do not imperil the trust between the APS, Parliament, executive government or the public. He considered there are six factors of particular significance to any assessment of whether the relevant trust is sufficiently imperilled, which can be found at [183].

Commentary

This decision has potentially significant implications for freedom of expression of a large section of the Australian public.

For the 150,000 employees at the Federal level, the High Court declined to rule that the APS Values should apply only where there is sufficient nexus between a person’s role in the APS and the views expressed.

Fundamentally this decision illustrates the limitations of the implied freedom of political communication. The High Court has re-affirmed that freedom of political communication is not a general right to free speech but instead, operates as a restriction on legislative and executive power, for the purposes of preserving and protecting the system of representative and responsible government.

The full judgment is available here. 

Martin Irwin (Partner) and Cassandra Fielden (Associate) at Norton Rose Fulbright.