“Anonymous” tweets on political matters ― a cautionary tale for employees in the public service
Comcare v Banerji  HCA 23
While Michaela Banerji was an employee in the Department of Immigration and Citizenship, she broadcast more than 9,000 tweets, many of which were critical of that Department, Government and Opposition immigration policies and members of Parliament. She did so using the anonymous Twitter handle “@LaLegale”.
The Australian Public Service (APS) Code of Conduct (the Code), as set out in the Public Service Act 1999 (Cth), included a requirement that APS employees “at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS” (s 13(11)). The APS Values included that “the APS is apolitical, performing its functions in an impartial and professional manner” (s 10(1)(a)). Departmental and APS guidelines cautioned against unofficial public comment and included a “rule of thumb” that anyone posting material online should assume that their identity and employment would be revealed.
By way of sanction for her LaLegale tweets in breach of the Code, Ms Banerji’s employment was terminated under s 15(1)(a) of the Public Service Act. That sanction was the most severe of the various sanctions which s 15 permitted.
Ms Banerji then claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Compensation Act) for injury resulting from the termination of her employment. In the Compensation Act, the definition of “injury” excluded injury suffered as a result of “reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”. Comcare rejected her claim on the basis that the injury alleged was excluded by the Compensation Act. The Administrative Appeals Tribunal set aside Comcare’s decision on the basis that the Code impermissibly trespassed upon Ms Banerji’s implied freedom of political communication.
Comcare’s appeal of the AAT decision was removed from the Federal Court to the High Court.
The High Court unanimously held that ss 10(1), 13(11) and 15(1) of the Public Service Act did not impose an unjustified burden on the implied freedom of political communication: , , , . Chief Justice Kiefel along with Bell, Keane and Nettle JJ comprised the plurality. Justices Gageler, Gordon and Edelman each wrote separately.
Implied freedom not an individual right
The joint judgment explained, as the High Court has many times before, that the implied freedom is not a personal right of free speech. It was therefore incorrect to frame the issue (as the AAT had) as relating to whether the impugned provisions impermissibly trespassed on Ms Banerji’s implied freedom of political communication: . Rather, the correct approach was to consider the effect of the impugned provisions “on political communication as a whole”:  (emphasis in original).
The question of whether a law burdens the implied freedom is typically answered in the affirmative, as it was in this case. The High Court’s approach to this threshold question makes for a relatively low bar over which a party arguing for constitutional invalidity must step. As the plurality stated, a “law which prohibits or limits political communication to any extent will generally be found to impose an effective burden on the implied freedom of political communication”: . While the reference to the “general” approach leaves room for a “no burden” argument in particular circumstances, this was not the case for it. The Commonwealth (intervening) conceded that s 10(1) in combination with s 13(11) imposed an effective burden on political communication: . Justice Edelman, in particular, emphasised the extent of the burden and observed that it was “made deeper by the fact that the comments it targets are from the particular class of persons who are ‘uniquely qualified to comment’”: .
The real question at issue was whether the burden could be justified on the basis that the impugned provisions:
- had a legitimate purpose consistent with the system of representative and responsible government mandated by the Constitution; and
- if so, were reasonably appropriate and adapted to achieve that purpose.
Given the role of the public service in our system of representative and responsible government, the Court was in emphatic agreement that the impugned provisions had a legitimate purpose. The plurality stated that there “can be no doubt that the maintenance and protection of an apolitical and professional public service is a significant purpose consistent with” that system: . Justice Gageler stated that the objective was “unquestionably legitimate”; Gordon J stated that the “objective has a long, and important, history” and that “its importance cannot be overstated”: , . See also Justice Edelman at .
Appropriate and adapted
The question of whether the legislation is appropriate and adapted in the relevant sense is approached, at least by most members of the High Court since McCloy v New South Wales (2015) 257 CLR 178, by asking whether the law is suitable, necessary and adequate in its balance.
Ms Banerji accepted that her conduct in broadcasting the tweets contravened the Code. However, she effectively contended that it would impermissibly infringe the implied freedom for anonymous tweets to be proscribed by legislation. According to the plurality ― “[t]o say the least, that is a remarkable proposition”: .
Ms Banerji’s argument that the impugned provisions did not meet the test of necessity in their application to anonymous communications was firmly rejected by the plurality: . Justice Gageler expressed similar views, and observed that Ms Banerji’s argument ignored the importance of the confidence that the Government, the Parliament and the public have in the APS as an “apolitical and professional organisation”: . See also Gordon J at  and Edelman J at .
Their Honours all found that the burden that the impugned provisions placed on the implied freedom of political communication was justified.
The implied freedom and administrative decision-making
Counsel for Ms Banerji also argued, in the alternative, that Comcare’s decision to terminate her employment was vitiated by its failure to take the implied freedom into account in determining what sanction to impose for her conduct. The argument was that the implied freedom was an essential mandatory consideration in the exercise of that discretion.
The plurality rejected this contention: . However, their Honours did not rule out the possibility that the implied freedom could be a “relevant consideration in the exercise of different discretions under other legislation”: . Justice Gordon observed that the implied freedom “is a limit on legislative and executive power”: .
Unlike the plurality, Gageler J did not appear to leave open the possibility that the implied freedom could be a relevant consideration in the exercise of executive power: . His Honour agreed with a view expressed elsewhere by Basten JA that “there is an element of conceptual confusion in the suggestion that the constitutional limitation on the scope of a power is a factor which must be taken into account by [an] authority in the course of exercising the power” in that “[t]he reason why the authority does not have the power cannot sensibly be described as a condition of its exercise”: . Justice Edelman also referred to this “conceptual confusion” (at ) and expressed the view that the “implied freedom operates directly upon the legislation rather than upon the exercise of executive power that has its source in legislation”: ].
In 2018, there were 240,700 employees in Commonwealth government. There were also 1,558,700 in state government and 187,600 in local government. To the extent that other jurisdictions impose similar limitations on the communications of persons employed in the public service, the High Court’s decision could have implications for the political communications of approximately 2 million government employees ― whether anonymous or not.