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Social Media and Freedom of Political Communication: Comcare v Banerji

Written by Fernanda Dahlstrom

Fernanda Dahlstrom holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practiced law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practiced in family law after moving to Brisbane in 2016. Fernanda has strong interests in Indigenous and refugee law, human rights and law reform.

On 7 August 2019, the High Court decided the matter of Comcare v Banerji, which dealt with an employee’s claim that her dismissal from the Department of Immigration and Citizenship breached her constitutional right to freedom of political communication. Ms Banerji had used social media to criticise the department and individual employees within the department, while employed by the department. However, her tweets were made under a pseudonym and outside of work hours.

Banjeri claimed that her dismissal was a breach of the much-championed implied constitutional right to freedom of political communication, one of the few rights protections afforded by the Australian constitution. The High Court ruled against her, finding the provisions of the Public Service Act 1999 do not contravene the constitutional protection of freedom of political communication.

Legislation

The Public Service Act 1999 contains the Australian Public Service Code of Conduct, which requires public servants to do the following:

  • Behave honestly and with integrity in the course of their employment;
  • Disclose any conflict of interest in relation to their employment
  • Behave in a way that upholds the values, integrity and good reputation of the APS

Sections 15 of the Public Service Act provides that an employee who breaches the Code of Conduct may be dealt with by any of the following:

  •  termination of employment;
  • reduction in classification;
  • re‑assignment of duties;
  • reduction in salary;
  • deductions from salary, by way of fine;
  • a reprimand.

The facts

Ms Banerji was employed by the Department of Immigration and Citizenship in 2006. In 2012, she began publishing tweets criticising the department, employees of the department, departmental policies and members of parliament. The tweets were published under a pseudonym and numbered more than 9000. Most of the tweets were published outside of work hours.

Two complaints were made to the department about the respondent’s tweets, by a fellow employee who claimed they breached the Public Servant Code of Conduct. After the second complaint, the Department found that the Respondent had breached the Code of Conduct and proposed to terminate her employment.

The respondent then initiated proceedings in the Federal Magistrates Court (now the Federal Circuit Court) seeking injunctions to restrain the Department from terminating her employment. The court refused her application.

The respondent was informed she would be terminated under the Public Service Act. She then applied to the Administrative Appeals Tribunal (AAT) for a determination on whether her termination amounted to a breach of the constitutional right to freedom of political communication. The Tribunal found in her favour, stating that “the use of the Code as the basis for the termination of Ms Banerji’s employment impermissibly trespassed upon her implied freedom of political communication.”

It found her termination to be invalid. The Department appealed to the High Court.

The decision on appeal

The High Court overturned the AAT’s decision, finding that the provisions of the Public Service Act did not contravene the constitutional right to freedom of political communication.

The court found that the AAT made an error in treating the implied right to freedom of political communication as a personal right, analogous to the right to free speech found in the US constitution. Rather, it found, the question of whether an Australian law infringes the right to freedom of political communication is based on the law’s effect on political communication as a whole. It is a restriction on legislative power.

The court found that the purpose of the values set out in Section 13 of the Public Service Act was to establish an apolitical public service and that this purpose was in keeping with Australia’s system of representative and responsible government.

Government employees had been given guidelines on how to comply with their obligations and had been advised to refrain from making unofficial public comment. They had been given guidance on what constituted public comment. Even though the tweets had been made under a pseudonym, the APS guidelines made it clear that staff who post on social media should assume that their identity and the nature of their employment would be revealed. The tweets had the potential to damage the good reputation of the public service.

The penalty for breaching the Code of Conduct is to be proportionate to the gravity of the breach. The provision does not amount to an unjustified burden on the freedom of political communication

This decision clarifies that freedom of political expression is not a general right to free speech but rather, a restriction on legislative power that exists to preserve the system of representative and responsible government.

If you require legal advice or representation in an employment law matter or in any other legal matter, please contact Go To Court Lawyers.

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