Public servants can be liable for social media posts

In the landmark case of Comcare v Michaela Banerji[1] handed down on Wednesday, the High Court unanimously overturned a ruling that the Department of Immigration and Citizenship imposed an unjustified burden on the implied freedom of political communication when dismissing Banerji because of her contentious political tweets.

Background

While employed at the Department of Immigration and Citizenship, Banerji used the Twitter username “LaLegale” to post more than 9,000 tweets that significantly criticised multiple branches of government and advocated her political agenda towards a full spectrum of government matters.

Complaints regarding Banerji’s tweets sparked an internal investigation into her online conduct. The objective of the investigation was to determine whether Banerji had breached the Australian Public Service (‘APS’) Code of Conduct (‘the Code’) contained within the Public Service Act 1999 (Cth) (‘the Act’).[2] The Code required Banerji to act in a manner consistent with the apolitical values of the APS and to perform her duties in an impartial and professional manner. The investigation ultimately found Banerji’s conduct had breached the Code and her employment with the APS was terminated.

Following Banerji’s termination, she attempted to claim compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’) for a psychological injury that she asserted was suffered as a result of the termination of her employment with the APS. Under the SRC Act, an exemption exists to prevent parties from claiming compensation if an injury results from “reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”.[3] In accordance with this provision, a Comcare representative rejected Banerji’s claim as it was determined her psychological injury arose out of reasonable administrative action taken against her in a reasonable manner.

Comcare’s decision to reject Banerji’s claim was initially set aside by the Administrative Appeals Tribunal (‘the Tribunal’). The Tribunal found the Code had imposed an unjustified burden that trespassed upon Banerji’s implied freedom of political communication, and that Banerji’s termination as a result of the hindered freedom could not possibly constitute reasonable administrative action taken in a reasonable matter.

High Court 

When the matter came before the High Court, they stressed it was “highly desirable if not essential to the proper functioning of the system of representative and responsible government” for governments to have “confidence in the ability of the APS to provide high quality, impartial, professional advice” and that it was critical for the operation of the system of responsible government for the APS to “faithfully and professionally implement accepted government policy, irrespective of APS employees’ individual personal political beliefs and predilections”.

When considering whether the tweets posted under an anonymous username should be included within the scope of the Code, the High Court considered that the conduct “may damage the good reputation of the APS even while it remains anonymous”.

“Consequently, if the impugned provisions were restricted in their operation to communications other than ‘anonymous’ communications, the impugned provisions would cease to operate as a deterrent against a significant potential source of damage to the integrity and good reputation of the APS.”

The Tribunal’s ruling was unanimously overturned with the High Court affirming Comcare’s initial decision to reject Banerji’s claim under the SRC Act. The High Court overturned the Tribunal’s ruling on the grounds that:

• the Code was adequate and proportionate to serve is purpose as a statutory protection for the constitutionally prescribed system of representative and responsible government and therefore did not impose an unjustified trespass on the implied freedom of political communication; and
• Banerji’s tweets, while anonymous, were within the scope of the Code and its operation.

In conclusion, the product of the High Court’s determination was that Banerji’s dismissal constituted  reasonable administrative action taken in a reasonable manner and her claim for compensation under the SRC Act was correctly dismissed by Comcare.

What is the impact?

Justice Edelman observed that the judgment’s outcome would cast a “powerful chill” over political communication in the public sector. The ruling consolidates the High Court’s view that public sector employees can, under certain circumstances, be lawfully dismissed for expressing their political agenda. Whether this outcome is relevant for private sector employees is another question entirely. It is unclear why, as a Commonwealth Government employee, Banerji did not make a claim under the anti-discrimination protections contained within the Fair Work Act 2009 (Cth) (‘FW Act’).[4] It remains untested whether an employee could successfully utilise these provisions to challenge a dismissal occurring under similar circumstances.

It should also be considered that in Comcare v Michaela Banerji,[5] the High Court assessed the Code’s importance for the operation of a responsible government against its detriment on the implied freedom of political communication. In a private sector context, the absence of a competing obligation of responsible government coupled with a claim made under the provisions of the FW Act [6] might have an impact on the overall result, however, only time will tell.

[1] [2019] HCA 23.

[2] ss 10(1), 13(11), 15(1).

[3] s 5A(1).

[4] s 351.

[5] [2019] HCA 23.

[6] s 351.