Comcare v Banerji

The High Court has allowed an appeal in a cause removed from the Federal Court appealing an Administrative Appeals Tribunal decision on whether provisions of the Public Service Act 1999 (Cth) on terminating a public servant’s employment contravene the implied freedom of political communication in the Commonwealth Constitution. The provisions under challenge here are ss 13(11), 10(1) and 15. Section 13(11) requires that APS employees ‘at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS’. Section 10(1) states that the APS Values include that the APS is ‘apolitical, performing its functions in an impartial and professional manner’. Section 15(1) empowers an Agency Head to sanction an APS employee who is in breach of the code, including by terminating their employment.

In 2006, the respondent accepted a position at the Ombudsman and Human Rights and Equal Opportunity Commission, which later became part of the Department of Immigration and Citizenship. In 2012, the respondent began to use an anonymous Twitter account @LaLegale partly to criticise DIC, its employees and policies, as well as the immigration policies of both major parties. After a series of DIC investigations into the account that discovered the respondent’s identity, in October 2012 a delegate of the DIC Secretary determined that the respondent had breached the APS Code of Conduct and recommended the sanction of termination of employment. The respondent sought an injunction to prevent the Department from terminating her employment, which was rejected by the Federal Circuit Court, and in September 2013 the delegate finalised the termination of employment.

The Department then rejected the respondent’s claim for compensation for a workplace injury for depression and anxiety following the termination, on the basis that the termination was a reasonable administrative action. Section 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) defines injury as including an aggravation of a mental injury that arose out of, or in the course of, employment, but excludes any aggravation caused by ‘reasonable administrative action taken in a reasonable manner’ about an employee’s employment. The respondent appealed that decision to the AAT, where the central issue was whether or not the respondent’s termination fell outside the exclusion in s 5A. The respondent contended that the exclusion did not cover the Department’s actions because the provisions contravened the implied freedom of political communication. After the cause was removed to the High Court for determination of the implied freedom question, the respondent contended before the Court that the provisions could not apply to ‘anonymous’ communication about the APS, and that, if the provisions did apply to anonymous communications, they were an unjustifiable burden on the implied freedom.

The High Court unanimously allowed the appeal, rejecting the respondent’s arguments.

The plurality (Kiefel CJ, Bell, Keane and Nettle JJ) held that the provisions did not impose an unjustified burden on the implied freedom, and that the termination of the respondent’s employment was not unlawful.

The plurality first rejected the respondent’s argument that the impugned provisions could not extend to ‘anonymous’ communications. First, those arguments differed from the way the case had been put before the AATA, and had they been made before the AATA the appellant would have likely called evidence to show the damage anonymous tweets might do to the APS (at [23]). Their Honours also rejected the substance of this argument. There was no reason to suppose ‘anonymous’ communications cannot fail to uphold the APS’s integrity and reputation because ‘as a rule of thumb’ anyone posting anonymously might reasonably expect to have their identity or employment revealed (at [24]). Further, where an APS employee broadcasts tweets critical of the Government and Department and is later found to be an APS employee, the fact that an APS employee engaged in that conduct will raise questions about the person’s ability to work professionally, and is likely to disrupt the workplace, and thus ‘is calculated to damage the integrity and the good reputation of the APS’ (at [24]). That damage would likely occur ‘even if the author’s identity and employment are never discovered’ (at [24]).

Turning to the implied freedom argument, the plurality first noted the difficulties facing the respondent’s arguments First, that s 13(11) does not proscribe all forms of ‘anonymous’ communication, only those that fail to ‘uphold’ the APS Values and the integrity and good reputation of the APS (at [25]). Second, the plurality endorsed the Solicitor-General of the Commonwealth’s point that whether an anonymous communication would contravene the values, integrity and good reputation of the APS is a question of fact and degree: an ‘anonymous’ Permanent Secretary tweeting criticisms of the Minister, Government or Opposition would clearly be a contravention (at [26]). Third, as the respondent did not contend that, ‘apart from the implied freedom’, it would be beyond the competence of the Commonwealth Parliament to enact s 13(11), or that the sanction of dismissal under s 15 would not be a lawful, proportionate response to her conduct, the respondent must be taken to have accepted that broadcasting the tweets did fail to uphold the APS values and integrity and good reputation and thus that, ‘but for the implied freedom’, dismissal was warranted (at [27]). The plurality summarised the thrust of the respondent’s argument as follows (at [28]):

In the result, the respondent’s implied freedom argument amounts in effect to saying that, despite the fact that her conduct in broadcasting the “anonymous” tweets was conduct which failed to uphold the APS Values and the integrity and good reputation of the APS, Parliament was precluded from proscribing the conduct because its proscription imposed an unjustified burden on the implied freedom of political communication. To say the least, that is a remarkable proposition.

Turning to the requirements of the implied freedom, the plurality concluded that there had been no unjustified burden on it. All parties had conceded, rightly, that the law did impose an effective burden on the implied freedom: ss 10(1) and 13(11) do impose on the ability of APS staff to engage in public comment on government and political matters, and thus has an effect on political communication (at [29]). That burden had, however, a legitimate purpose. The purpose of these provisions is to ensure that APS employees act at all times to uphold the APS values and the integrity and good reputation of the APS, which in turn serves the wider principle of maintaining and protecting an ‘apolitical public service’ that serves the national interest (at [30]). An apolitical and professional public services is undoubtedly a significant purpose consistent with the system of representative and responsible government mandated by the Constitution (at [31]).

Turning next to whether the provisions were appropriate and adapted to this purpose, the plurality used the suitability, necessity and adequacy in balance structured analysis of the implied freedom.

Suitability requires that the law has a rational connection to its purpose, and uses a means that is capable of realising that purpose (at [33]). Sections 10(1) and 13(11) were a rational means of realising the objectives of having an apolitical, impartial and highly professional public service that functions regardless of employees’ personal political beliefs, and thus are suitable (at [34]).

For laws that are suitable to achieving a significant purpose consistent with the system of representative and responsible government mandated by the Constitution, necessity is usually assumed, unless there is an obvious and compelling alternative that would be equally practicable and available that had a significantly lesser burden on the implied freedom. The plurality rejected the respondent’s argument that a provision that explicitly excluded ‘anonymous’ communications would be an obvious and compelling alternative: their Honours reiterated the earlier point that ‘anonymous’ communications might cease to be anonymous, and thus would damage the integrity and good reputation of the APS, and that they might still damage the APS even while remaining anonymous (at [36]).

Finally, a law that is suitable and necessary is adequate in its balance unless the benefit sought by the law is manifestly outweighed by its adverse effect on the implied freedom (at [38]). Here, s 15 provided for a range of different penalties, which must be selected as appropriate by the Agency Head exercising reasonable discretion, which would fit a breach of s 13(11). In serious cases, termination would be appropriate, while a single minor breach would not justify termination (at [40]). Section 15 also requires procedural fairness be accorded to the employee, who also has a right of internal review and merits review at the Tribunal (at [41]). Far from being inadequate in their balance, the provisions are a ‘plainly reasoned and focussed response to the need to ensure that the requirement of upholding the APS values and the integrity and good reputation of the APS trespasses no further upon the implied freedom than is reasonably justified’ (at [42]).

Finally, the plurality turned to the respondent’s contention that the termination decision was vitiated by the decision-maker’s failure to take the implied freedom into account in determining the sanction imposed. The plurality held that the implied freedom is not an essential or mandatory consideration in the exercise of discretion: the provisions are in accordance with the implied freedom, and provided the decision-maker acted reasonably in accordance with those provisions, there cannot be a risk of infringing the implied freedom (at [44]). The plurality also rejected the alternative formulation of this argument  — that even without it being an essential consideration in exercising discretion, the implied freedom provides an outer limit on the penalties available, and here termination lay beyond that limit — noting again that the respondent’s conduct of the Tribunal case implies she has accepted that her conduct contravened the APS values and the integrity and good reputation of the APS, and that but for the implied freedom the dismissal was warranted: ‘It is too late now for the respondent to be permitted to contend for the first time, as it were on ultimate appeal, that the penalty imposed on her did not accord to the nature and gravity of her contraventions’ (at [46]).

Gageler J agreed with the orders of the plurality. After noting the procedural history, Gageler J emphasised that the question before the Court is not confined to the issues around the particular circumstances of the respondent’s employment; the question of whether the provisions infringe the implied freedom in this matter should be approached by asking whether their range of potential operations infringe upon the implied freedom in general (at [50]). Gageler J also held that this matter raised no separate question of administrative law on whether the implied freedom was a consideration which should be and was not taken into account in making the termination decision (at [52]).

Gageler J then laid out his methodology for assessing the implied freedom. Whether or not the provisions burden the implied freedom, and then whether the burden is justified rests on satisfying two conditions: that the object of the provisions is consistent with the constitutionally prescribed system of representative and responsible government, and that they are reasonably appropriate and adapted to achieve that object (at [53]). In Gageler J’s view, the provisions did burden the implied freedom but also met the two justifications: their object was not only consistent with the constitutional system of government but ‘serves positively to promote it, and the provisions are narrowly tailored to achieve that object with minimal impairment to the implied freedom’ (at [54]).

Expanding on these conclusions, Gageler J first turned to the constitutional context of the PSA, noting its basis in the executive power arrangements in ss 61 and 67 of the Constitution and the principles around the responsibility of Ministers to Parliament for the operations of officers of the public service (see [56]ff). This context ‘informs the structure of the PSA and permeates its ethos’ (at [65]), which Gageler J then explained as embodying a ‘long tradition of professionalism and political neutrality’ among public servants (at [70]), as emphasised in various reform reports over the years (see at [71]ff). Within this historical context, the current PSA states that its first main object is ‘to establish an apolitical public service that is efficient in serving the Government, the Parliament and the Australian public’, and regulating the conduct of employees in the provisions under challenge is the machinery for achieving that object (see [75]ff). After reviewing those provisions, Gageler J emphasised that once an investigation occurs and a breach is found, there are a range of sanctions that may be imposed, and that the investigation, decision-making process must afford procedural fairness and is subject to the normal requirements that discretion be exercised within the bounds of reasonableness (at [82]ff), and that the decision is subject to internal and external review (at [85]ff).

Turning then to the burden of the provisions, Gageler J noted that the provisions are substantially and directly targeted at political communication, but do not discriminate on the basis of political viewpoint (at [90]). But Gageler J also emphasised that they are not a statutory prohibition enforceable in civil or criminal proceedings: rather the employee must behave at all times in a way that upholds the APS standards by restraining their behaviour in particular ways, which is ‘highly situation-specific and cannot readily be reduced to a set of prescriptive rules of behaviour’ (at [93]). Second, s 13(11) does not self-execute in applying to s 10(1)(a), that is, whether or not an employee has breached the APS Values is not a question that can be determined by a court, but instead has its own administrative procedures (at [94]). The burden is one that applies to restrict APS employees for as long as they continue to be APS employees, to avoid the possible sanction that, at worst, results in the person ceasing to be an APS employee (at [95]).

Gageler J then reiterated the point he made in past cases (most recently Clubb v Edwards [2019] HCA 11) that laws that confer discretion which might infringe on the implied freedom require a close scrutiny and a compelling justification to not infringe the implied freedom, and this scrutiny is appropriate here (at [97]). Here, the provisions were justified. The PSA’s main object of establishing an apolitical public service is ‘unquestionably legitimate’ and indeed ‘is framed to enhance the practical operation of the constitutionally prescribed system of responsible government’ by perpetuating the ethos required within the Australian constitutional context (at [100] and [101]). Three considerations show that the provisions are reasonably appropriate and adapted to that object. First, the s 13(11) requirement that an APS employee uphold the APS Values is a statutory incident of employment: it applies only while a person is an APS employee, and its breach can, at worst, lead to the termination of that employment (at [103]). Second, the APS Value of being apolitical, impartial and professional is ‘tailor-made’ to the object of the PSA: its vagueness and its penetration of a persons’s private life is unavoidable and no more than commensurate with the achievement of that object (at [104]). Gageler J then noted that, contrary to the Tribunal’s reasoning, an ‘anonymous’ comment can still undermine trust in impartiality and professionalism: ‘Confidence cannot exist without trust, and trust cannot exist without assurance that partisan political positions incapable of being communicated with attribution will not be communicated anyhow under the cloak of anonymity.’ (at [105]). Third, the procedure in s 15 for determining a breach and the appropriate sanction is conditioned by the requirements of procedural fairness and reasonableness, and may be reviewed on its merits or by judicial review (at [106]).

Gordon J likewise agreed with the orders of the plurality. Gordon J emphasised that the requirements for employees to uphold the APS Values at all times was not only consistent with, but a ‘defining characteristic’ of the constitutionally prescribed system of representative, and, especially, responsible government, and do not impose an unjustifiable burden on the implied freedom (at [111]).

After reviewing the relevant statutory provisions of the PSA (at [113]ff) and the Guidelines (at [126]ff), Gordon J turned to the application of the implied freedom. Gordon J first noted that the implied freedom is a limit of legislative and executive power (at [135]). On the first step of whether the provisions burden the implied freedom, Gordon J held that they did, making four points. First, that the provisions cannot be read in isolation, and are not just about content, but also the process: namely, the standards are not self-executing, but are ‘only given legal “teeth” through determination of breach’ (at [138]). Second, they are targeted solely at APS employees, and not the public at large. Third, the terms of the provisions do not directly target political communication, but rather regulate, at all times, conduct of employees as that conduct relates the the APS values and the integrity or good reputation of the APS (at [140]). Fourth, the content of the burden is transparent, in that there are procedures for determining breach, and procedures for reviewing that determination (at [141]).

Turning next to whether that burden serves a legitimate end or purpose, Gordon J held that it did, namely of maintaining ‘an apolitical public service of integrity and good reputation’ (at [142]). That object, reflected in s 3 and given further content by s 10 (see [143]ff), goes to securing the open accountability of the APS within the framework of ministerial responsibility, which in turn is the ‘very essence of “responsible government”‘ (at [145], [146]ff). The object of the PSA involves being accountable to Government, Parliament and the Australian public as reflected in the concept of ‘responsible government’: s 13(11) connects this the APS Values and the conduct of APS employees, requiring them to uphold the APS Value and the integrity and good reputation of the APS at all times, namely upholding the internal character and functioning of the APS (integrity) as well as the public perception of its reputation necessary for the proper function of responsible government (at [151]). The maintenance of an apolitical public service is a legitimate end or purpose (at [155]).

Moving to justification, Gordon J held that the provisions have no other purpose or effect besides maintaining an apolitical public service (at [156]). The scope and application of the provisions is tailored and limited only to APS employees, and only while they are employed by the APS. They do not target communication but rather conduct, and only conduct that fails to uphold the APS Values or the integrity and good reputation of the APS (at [157]). Finally, the provisions are not self-executing but require procedural fairness and the appropriate sanction, all subject to review (at [158]).

Noting that those observations conclude the issue, Gordon J then made two points. First, that any attempt to carve out a subset of ‘anonymous’ political communications creates an illusory category: anonymity can and often eventually will be lost, and when it is lost the damage is that a member of the APS was not apolitical, which in turn harms the APS and thus the constitutionally prescribed system of government (at [160]). Second, Gordon J reiterated her earlier points that the implied freedom should be approached on a case-by-case basis, and that there is no ‘one size fits all’ approach: this case shows that determining the nature and extent of the burden cannot be a final step in analysis, but rather the proper construction of the challenged provisions shows their only purpose is protecting a central part of responsible government, and they have no operation beyond that purpose, meaning that ‘[n]o greater justification is required’ (at [161]).

Edelman J also agreed with the orders proposed by the plurality. Edelman J noted the specificities of the Australian implied freedom, as contrasted with individual free speech rights, noting that the boundaries of free speech are largely set by Parliament, that the judiciary can constrain parliament’s choices ‘only at the outer margins for reasons of systemic protection’ and that the implied freedom is highly constrained: it is not an individual right, but operates only on legislative power, and only to restrict that power ‘so far as necessary‘ for the constitutionally prescribed system of representative and responsible government (at [164] emphasis in original). The implied freedom is not a ‘trump over other values’ that might be implemented in legislation, and parliament is able to make decisions that promote other values over it, a point reflected in proportionality testing of the implied freedom (at [165]). For Edelman J, while the constraints on political communication were ‘deep and broad’ in the provisions challenged here, they are reasonably necessary and adequately balanced, given the legitimate policy purpose linked to Australia’s constitutionally prescribed system of responsible government, and valid in all of its applications (at [166]).

Explaining this conclusion, Edelman J first noted that the primary issue here was the constitutional validity of ss 13(11) and 15, and emphasised that it was essential to assess whether the provisions taken together contravene the implied freedom (at [169]). After reviewing the predecessors to s 13 (at [171]ff), Edelman J noted that it required employees, by their behaviour, to uphold the reputation of the APS as well as its integrity and the APS Values, and thus is both an outward and inward facing test for behaviour (at [175]). The APS Value of being apolitical and performing functions in an impartial and professional manner in s 10(1)(a) impacts on the general obligation in s 13 by, first, requiring that APS employees do this at all times, and secondly, that it relate to behaviour, rather than thought or some absolute requirement of apoliticality (at [175]–[178]). These values of being apolitical, impartial and professional are aimed at a trusted relationship between the public service, Parliament, the Government and the public (at [179]), and the degree to which an individual public servant should avoid ‘being politicised’ is affected by the other APS values, which include, among other things, recognising diversity and the diversity of opinions (at [180]). Edelman J noted the Tribunal’s observation that social media use and comments in a private capacity are ‘quite acceptable’ but still required that employees not behave in a way that suggests they cannot act apolitically or impartially in their work (at [181]).

Having noted this history and context, Edelman J stated that s 13(11), read with s 10(1)(a) does not prevent public servants from making political comments on social media, but instead show there is a ‘boundary, albeit ill-defined, between acceptable expression of political opinions and unacceptable expression of political opinions’ (at [182]). The boundary is crossed when communications may imperil the trust between the APS and the Parliament, Government and public, and whether that has occured will depend on all the circumstances (at [182]). Edelman J then emphasised six factors of special significance that might imperil that trust: the seniority of the public servant, whether the comment relates to their direct duties or responsibilities, the location and content of the communication on a spectrum from vitriol to objective and informative policy discussion, whether the public servant intended or could have reasonably foreseen the communication would be disseminated broadly, whether the public servant intended or could reasonably have foreseen the comment would be associated with the APS, and what the public servant expected, or could reasonably have expected, an ordinary member of the public would think of the effect of the comment on the public servant’s duties and responsibilities (at [183]). Edelman J rejected the respondent’s contention that anonymous communications could never contravene s 13(11); for example, an easily identifiable senior public servant making an anonymous but vituperative criticism that suggests he or she would frustrate government policy would be a clear contravention (at [184]). But Edelman J also rejected the Attorney-General of the Commonwealth’s suggestion that anonymity is only relevant to sanctions, raising the hypothetical of a private comment that is later made public but would not undermine trust in the APS (at [185]), just as an anonymous comment may be anonymous precisely to avoid connection to the public service at all (see at [186]). Edelman J then noted that this general analysis of s 13(11) and s 10(1) is not the basis for an application to the circumstances of the respondent’s communications or her termination, but rather goes to the primary issue in the appeal, whether s 13(11), read with s 10(1)(a) and with s 15, is inconsistent with the implied freedom (at [187]).

Turning to that primary issue, Edelman J noted that the analysis required the application of structured proportionality as had been used by the Court in recent implied freedom cases since McCloy v New South Wales [2015] HCA 34. This approach promotes ‘transparent reasoning’ in applying the implied freedom and requires the Court to look to suitability, reasonable necessity and adequacy in the balance of laws burdening the implied freedom (at [188]). Edelman J noted that the anterior question of whether purpose of the challenged law is legitimate is answered ‘yes’: the PSA aims to establish an apolitical public service and the provisions here effect that purpose, and do not (contrary to the respondent’s submission) also have the purpose of preventing political communications by APS employees outright (at [191]).

Moving first to suitability or rational connection between the provisions and the purpose, Edelman J rejected the respondent’s contention that anonymous comments have no connection with a person’s status as an APS employee; that might show a not reasonably necessary burden, but it does not show a lack of rational connection (at [192]). Turning to reasonable necessity, or whether there was an alternative, reasonably practicable means of achieving the same object and extent with a less restrictive effect on the implied freedom, Edelman J held that while the burden is both deep and wide (see [195]ff), the only alternative raised by the respondent — one that excludes anonymous communications, and thus only applies to speakers who are identified as public servants — remained unclear in its terms, suggesting that it is not an obvious or compelling alternative (at [199], [200]), and an exclusion for anonymous communications could still substantially undermine Parliament’s purpose of maintaining an apolitical public service (at [201]). Turning then to adequacy in the balance, Edelman J noted that the purpose of the PSA was of great constitutional importance, and emphasised that a law should only be seen as unconstitutional where there is a gross imbalance between the Parliament’s legitimate object and the burden imposed that would involve a threat to the constitutionally prescribed system of representative and responsible government: here, the provisions are far from showing a lack of balance (at [205], [206]).

Finally, Edelman J rejected the respondent’s arguments on disapplication and constraints on executive power. Edelman J rejected the respondent’s point that the decision-maker failed to take into account the implied freedom, noting that there is nothing in s 15 that could imply the decision-maker needed to treat the implied freedom as a mandatory consideration (at [208]). Further, the implied freedom operates on legislation and legislative power, not directly on the exercise of executive power (at [209]). Finally, Edelman J reiterated his point in Clubb v Edwards that severance and reading down are not apt labels, but instead ‘disapplication’ better described the process of construing the meaning of legislation when assessing whether it contravened the implied freedom (at [211]).

High Court Judgment [2019] HCA 23 7 August 2019
Result Appeal allowed
High Court Documents Banerji
Full Court Hearings [2019] HCATrans 51 21 March 2019
[2019] HCATrans 50 20 March 2019
Removal Hearing [2018] HCATrans 180 12 September 2018
AATA Decision [2018] AATA 892 16 April 2018
This entry was posted in Case Pages, Decided Cases, Opinions by Martin Clark. Bookmark the permalink.

About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

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