COMCARE v BANERJI

insights Article One | September 2019 | proximity.com.au

COMCARE V BANERJI [2019] HCA 23

What this case did NOT decide:

ɚ It did NOT say that employers can sack employees who make comments they dislike. ɚ It did NOT say that public servants are not allowed to make political comment, even publicly.

by Sarah Byrne Principal Advisor Proximity

The recent High Court decision in Comcare v Banerji (the self-styled “LaLegale”) has led to a degree of hysteria amongst certain commentators and interest groups claiming that employees have lost the freedom to express views that their employers do not like.

Keep calm. You will not be sacked from the APS for liking that Facebook post suggesting climate change might for reals be A Thing. The situation, as they say in the classics1, is a lot more nuanced than that.

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ɚ It did NOT place limits on the existing right to freedom of political communication. ɚ It did NOT find that sacking was an appropriate penalty for a public servant who breaches the Code of Conduct.

What the Court ACTUALLY said: ɚ The same right of freedom of political communication exists as it always has. ɚ That right is not a personal right, but relates to the overall freedom of political discourse in Australia.

(Also: this is NOT NEWS). ɚ The effect of the right is to constrain governments from enacting legislation that would put greater limits on political communication than is necessary to achieve their legislative purpose. ɚ The relevant provisions of the Public Service Act (PSA) (and relevant subordinate legislation and instruments) are actually more relaxed than in previous iterations, provide multiple checks and balances, and expressly do NOT prevent public servants from political participation ɚ The relevant provisions of the PSA are an important reflection of the Constitutional principle of an impartial and responsible Executive, separate from the legislature, and consistent with such other provisions as the Constitutional prohibition on public servants standing for election. ɚ Whether a public servant’s political activity oversteps this line is a matter of degree and context.

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All seven judges found unanimously and robustly against Ms Banerji. Kiefel CJ and Bell, Keane & Nettle JJ gave a joint judgment. Gageler, Gordon and Edelman JJ thoroughly agreed with the plurality, but were each keen to drive the point home with some pithy individual obiter about the Constitutional and historical significance of an impartial public service.

At this point of media saturation, the facts are trite, but it’s worth stating them for context and posterity. In 2012 Ms Banerji, an APS6 in the (then) Department of Immigration since 2006, adopted the Twitter handle “LaLegale”, and started tweeting “intemperately” (to quote the AAT) about the government’s policies on immigration, the Department’s administration, politicians (including opposition figures), and, with some vitriol, her direct supervisor. At least one tweet was sent during working hours, although she did not openly identify herself as a public servant, nor use her name or photograph.

However, colleagues became aware of her activity, and two internal complaints were made about it. On investigation of the second, Ms Banerji admitted she was the author of the tweets. She was found to have breached multiple provisions of the PSA, including the section 10 Values (eg “the APS is apolitical… impartial and professional”) and the section 13 Code of Conduct (such as the requirements to behave honestly and with integrity, be impartial and courteous, disclose and avoid real or apparent conflicts of interest, and to behave at all times in a way that “upholds the integrity and good reputation of the APS”).

After a lengthy process, the delegate terminated her employment. Ms Banerji did not contend that termination was not an appropriate sanction - ie, a harsh and unreasonable response to her conduct; rather she submitted that the process was flawed in that she was entitled to freedom of political communication. She claimed against Comcare for psychological injury resulting from her dismissal. Under the Safety, Rehabilitation and Compensation Act, compensation in such cases is only available where not caused by “reasonable administrative action taken in a reasonable manner”, and was therefore refused. This meant Ms Banerji had to establish either that her termination was not “reasonable”, or that it had not been undertaken “in a reasonable manner”.

Ms Banerji appealed Comcare’s decision to the AAT on the basis that the dismissal was not reasonable administrative action, because the relevant provisions of the PSA were invalid to the extent that they were inconsistent with her right to freedom of political communication. The AAT agreed with her, at which point all hell broke loose and the Attorney-General intervened to have the question removed directly to the High Court.

Article One | September 2019 | proximity.com.au

Ms Banerji’s arguments to the High Court were, essentially, threefold. First, she argued that the provisions of the PSA which underpinned her dismissal should be struck or read down as an impermissible constraint on the right to freedom of political communication. Second, she argued that even if they weren’t, they did not apply to “anonymous” communications. Finally, she asserted that in reaching the decision to dismiss her, the delegate had failed to take account of a relevant consideration - namely, her right to freedom of political communication. The Court rejected all three arguements. Comprehensively.

The judges’ collective eyeroll is almost visible as they explain, yet again, that the right to freedom of political communication is not a personal right of free speech - contrary to the assumptions and findings of the AAT, which were therefore set aside. It is a general right, in the sense that it confers no personal right of action, but acts to limit the power of the Parliament to enact laws that will create an unreasonable restraint on freedom of political discourse in general.

The majority found that because the PSA only applies to the public service, it cannot be said to place an “unjustified burden” on freedom of political communication as a whole.

The other judges also found, from varying approaches, that while the provisions may amount to a limitation on the freedom of political communication, it is a limitation that is entirely justified by the clear Constitutional intention to establish an apolitical public service, and further leavened by multiple safeguards, alternative lesser penalties, and rights of appeal. Statutory instruments under the PSA make it clear that political communication is not forbidden to public servants except where it would undermine the reputation of the APS and undermine confidence in its impartiality, and even then penalties are unlikely to be significant. So if there is such a limitation, it is proportionate and constitutionally justified.

In the alternative, Ms Banerji contended that if the provisions were valid, they nevertheless did not apply to anonymous communications. All judges, again, made short work of this - Ms Banerji had not raised this as an argument before the AAT so the Court could not consider it now.

The majority did, however, offer some trenchant obiter. For one thing, it suggested, there is no reason to suppose that the prohibitions on conduct in the PSA do not extend to public servants who conceal their identity - indeed, it would be “facile to suppose a parliamentary intention to exclude communications of the type broadcast by the respondent”.

Unattributed words are still capable of impugning the APS. The Court also expressed scepticism as to whether tweets were in fact “anonymous” - Departmental policies on social media warned staff that they should assume

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Article One | September 2019 | proximity.com.au

anonymity would be unmasked (and, indeed, the tweets were so obviously coming from inside the house that the two internal complaints correctly identified Ms Banerji as the author). In any event, as the majority observes, this argument rests on a “not necessarily sound” assumption that anonymous tweets are more deserving of protection than those for which the author is prepared to own responsibility.

Finally, of course - this decision is explicitly confined to the public service, and has no bearing on any discussion of whether common law employees can make political or any other type of comment disapproved by their employers.

In other words, Comcare v Banerji has changed literally nothing. Nada. Zip. Zero. Nil. As you were.

Finally, the Court dispatched Ms Banerji’s third submission - that the right to freedom of political communication was a relevant consideration to which the delegate should have adverted in reaching a decision to terminate her employment. Again, the Court patiently reiterated that the freedom operates only to prevent the Parliament from passing laws that place unjustifiable restraints on political communication. It is well-established that a decision-maker cannot be expected to take into account the validity of legislation when making a decision under it. So no, this was not a relevant consideration.

Game, set and match to the Commonwealth.

A few especially pungent red herrings should also be addressed. First is Ms Banerji’s attempt to argue that the dismissal was a harsh and unreasonable response to her conduct. The High Court pointed out that she hadn’t raised this in prior proceedings, and could not therefore start arguing it on appeal. From obiter, however, it is clear the Court is of the view that it is a penalty that should be reserved for only the most extreme cases (and, possibly, that this might be one of them.) It points out that a variety of sanctions are available and in many instances a reprimand is likely to be sufficient. So this case is expressly not about whether a public servant can be sacked for making political statements.

Second is the assumption made in some of the less responsible commentary that this is some sort of all-ornothing binary - public servants can make political comment or they cannot. All judges were abundantly clear that public servants are not prohibited from political activity. However, that political activity cannot be such that it would bring the public service into disrepute, or bring into question the public servant’s ability to serve the government impartially.

Edelman J went so far as to suggest that a Departmental Secretary who criticises government policy privately to her spouse is unlikely to breach the Code even if said spouse then, without her approval, tweets that to the world (I suspect that someone will nevertheless be sleeping on the couch). Other judges are cagier, but all say it is a question of degree, and point out that public servants have greater freedom to participate in political life under the current legislation than at any previous point in Australian history.

Sarah Byrne | Principal Advisor | Proximity Sarah is a highly qualified and experienced government lawyer, company director and accredited mediator, with an excellent reputation for client-focused and strategic problem-solving.

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Article One | September 2019 | proximity.com.au

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