By Megan Dudley
Last week, the High Court of Australia handed down the decision in Comcare v Banerji, ending a long-running legal saga highlighting the potential consequences for public sector employees who use social media in breach of their Code of Conduct.
Michaela Banerji was an employee of the then Department of Immigration and Border Protection (“The Department”). She was a prolific user of Twitter, an online microblogging platform. She penned a profile under the pseudonym “LaLegale” which currently has over 6,000 followers.
According to an internal investigation report of the Department, between 2006 and 2012 Ms Banerji posted 9000 tweets. Her primary focus was on Australia’s treatment of asylum seekers. The tweets were often highly critical of the Department’s immigration policies, the Minister for Foreign Affairs, the then Prime Minister and other employees of the department – including Ms Banerji’s direct manager.
Ms Banerji initially commenced legal action against her former employer to prevent dismissal. Ms Banerji then made a claim to Comcare for workers’ compensation claiming she sustained a psychiatric injury as a result of her termination. Ms Banerji argued that the actions of the Department could not be reasonable administrative action given it was unlawful to impede on her implied freedom of political communication. Comcare argued the actions taken constituted reasonable administrative action taken in a reasonable way.
In March 2012, a colleague of Ms Banerji complained that her use of social media was in breach of the Australian Public Service (“APS”) Code of Conduct, contained within Section 13 of the Public Service Act (“PSA”). At the relevant time, the PSA required all APS employees to behave “at all times” in a manner that “upholds the APS values and integrity and good reputation of the APS”. An investigation was conducted into the allegations.
The investigation found that Ms Banerji was in breach of the APS Code of Conduct for acting in a manner that was not apolitical and inconsistent with the values of the APS, which were grounds for termination.
Ms Banerji brought a general protections application before the Fair Work Commission, and simultaneously commenced proceedings in the Federal Circuit Court of Australia. Ms Banerji sought an interlocutory injunction to stop the Department from terminating her employment. She argued that her tweets were an expression of political opinion, made in her own time away from work and on her own devices. She claimed her dismissal would be unconscionable and in breach of the “constitutionally guaranteed freedom of expression”.
Judge Neville presided over the interlocutory hearing. His Honour held that there is no “unbridled” or “unfettered” constitutional right to freedom of political expression. His Honour found that Ms Banerji’s comments were not protected under the constitution whilst she remained an employee of the Department under a contract of employment that was subject to the APS Code of Conduct and internal social media guidelines. The injunction was refused.
In September 2013, Ms Banerji’s employment was terminated on the basis that she had breached the APS Code of Conduct.
On 18 October 2013, Ms Banerji lodged a claim for workers’ compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). She claimed for adjustment disorder characterised by depression and anxiety. Comcare refused the claim and that decision was reaffirmed on 1 August 2014.
Ms Banerji lodged an appeal with the Administrative Appeals Tribunal on 30 September 2014. The Tribunal considered whether Ms Banerji’s termination was reasonable administrative action taken in a reasonable way. If this was established, Ms Banerji’s claim could not succeed. Ms Banerji submitted that her termination could not have been reasonable administrative action if it was carried out in breach of her implied freedom of political communication.
The Tribunal held that the termination infringed on the implied freedom of political communication and was therefore unlawful. Comcare could not rely on reasonable administrative action taken in a reasonable way. Ms Banerji’s claim for injury was subsequently accepted.
The High Court Appeal
In September 2018, Comcare appealed the Tribunal’s decision and the dispute was taken to the High Court. A decision was handed down on 7 August 2019 in favour of Comcare.
The question for the Court was if the law prohibited or limited political communication to any extent where it imposes on a burden on the implied freedom of political communication.
The majority (Kiefel CJ, Bell, Keane and Nettle JJ) held that the decision of the Tribunal should be set aside. The decision noted that:
“As a rule of thumb, anyone who posts material online, particularly on social media websites, should assume that, at some point, his or her identity and the nature of his or her employment will be revealed.”
The Court did not entertain Ms Banerji’s argument that the impugned provisions of the Code did not extend to “anonymous” communications.
Gordon, Gageler and Edelmen JJ wrote separate judgments noting the substantial burden but agreeing the Code of Conduct was “reasonably necessary and balanced”.
The High Court unanimously held that the provisions had a purpose consistent with the maintenance of an apolitical public service and that they were reasonably appropriate and proportionate to their purpose.
The Court further held that the PSA did not impose an unjustified burden on the implied freedom of political communication, with the result that the termination of Ms Banerji’s employment with the Commonwealth was not unlawful.
The decision highlighted and re-affirmed that the implied freedom of political communication is not a personal right of free speech, but is a restriction on legislative power which extends only so far as necessary to preserve and protect representative government.
This decision confirms that Commonwealth employers can take action against an APS employee who expresses political views on social media, even if expressed anonymously. However, the scope of this decision is confined to employees under the APS Code of Conduct.
Despite the limited scope, there is no doubt the general application of this case will be wide-spread across employers of varying industries. Importantly, this case is an example of what can happen when employees act in a manner inconsistent with their contract of employment or internal Code of Conduct.
As an employer, it is important to ensure that no adverse action is taken against employees for asserting political views. We recommend you seek legal advice before terminating an employee.
If you or your company are concerned about an employee’s actions or wish to take steps to terminate their employment, our employment lawyers are available to assist. Please contact our office on (07) 3211 2233 or enquire using the below form.