By Anthony Forsyth, Professor in the Graduate School of Business and Law at RMIT University in Melbourne.
An edited version of this post was published in The Conversation, 7 August 2019: Will the High Court ruling on public servant’s tweets have a powerful chill on free speech?
The Israel Folau case has dominated headlines for months now. Many Australians have been intrigued by the extent to which employers like Rugby Australia are able to control the social media activity of their employees, in that instance a high-profile player who tweeted his condemnation of homosexuals and others. He argues he has been sacked for expressing his religious beliefs.
The High Court has handed down its decision in another case which raises similar issues around employer silencing of employee free speech. In Comcare v Banerji, the High Court ruled that the federal Government may legitimately restrict the right of public servants to express political views. Those limitations do not breach the implied freedom of political communication in the Constitution.
What happened in the Banerji case?
In September 2013, Michaela Banerji’s employment in the then-Department of Immigration and Citizenship was terminated for breach of the Australian Public Service Code of Conduct and social media guidelines. The Code requires employees ‘at all times’ to uphold APS values, while the guidelines stated that it was inappropriate for employees to make unofficial public comment that harshly criticises the Government, politicians or their policies.
The offending behaviour was Ms Banerji’s posting of more than 9000 tweets, using the anonymous Twitter handle @LaLegale, in which she criticised the federal Government and its immigration policies, the relevant Minister, the Opposition and the Department in which she worked. For example, she tweeted: ‘Substance: asylum. Process: Rule of Law. Result: onshore processing #nodetention @inhumane @nooffshoreprocessing’
Ms Banerji unsuccessfully applied for an injunction to prevent her dismissal from proceeding. In that case, she argued that the Department was breaching the Fair Work Act by taking action against her for expressing political opinions and exercising her constitutional guarantee of free political communication. The Federal Circuit Court rejected that submission, finding that the implied freedom of political communication under the Constitution has limits: it does not give an employee licence to breach their contract of employment.
Alleging that her dismissal and the events preceding it caused a psychological condition, Ms Banerji brought a claim under the federal public service workers’ compensation scheme (Comcare). When her claim was rejected, she sought a review in the Administrative Appeals Tribunal. The central issue was whether her dismissal was ‘reasonable administrative action taken in a reasonable manner’, as this could not form the basis for a compensable injury. The dismissal would be considered unreasonable, though, if it was carried out in breach of the implied constitutional freedom of political communication.
The AAT found in Ms Banerji’s favour. It ruled that the APS Code impedes free communication about government or political matters. The Code requires employees to uphold the reputation and values of the APS at all times – even outside of work. Those restrictions could be seen as legitimate to ensure an apolitical public service which holds the confidence of the public. But the Department went too far in applying such restrictions to Ms Banerji, given that she had tweeted anonymously and therefore could not be identified as a public servant. In the AAT’s view, limiting her right to speak out in that way ‘bear[s] a discomforting resemblance to George Orwell’s thoughtcrime’.
The High Court’s decision
The High Court unanimously decided in favour of Comcare and set aside the decision of the AAT. The majority judges in the High Court considered that the Tribunal had incorrectly approached the matter as a question of whether Ms Banerji’s personal freedom of political communication had been intruded upon. These four judges stated that the constitutional freedom ‘is not a personal right of free speech’. Rather, it protects ‘political communication as a whole’ and in assessing whether a law (in this case the APS Code) unduly infringes the implied freedom, the effect on individuals can be taken into account as part of assessing whether political communication as a whole is adversely impacted.
The majority judges considered that the restrictions on engaging in public comment imposed on federal public servants by the APS Code (and the Public Service Act) ‘must have a material effect on the totality of political communication’. The question then was whether that infringement on political discourse is for a legitimate purpose consistent with our system of responsible government. The judges decided that the limitations imposed on public servants were needed to ensure the provision of independent, impartial advice to government through ‘an apolitical and professional public service’.
In reaching this view, the majority judges rejected Ms Banerji’s argument that applying the limitations on speech to the anonymous comments of a public servant went too far. The judges took the view that even ‘”anonymous” communications are at risk of ceasing to be anonymous, and thereby damaging the integrity and good reputation of the APS’ – and further, communications which remain anonymous could also damage the reputation of the public service.
The other three High Court judges essentially agreed with the analysis of the majority, two of them adding the observation that the restrictions of free speech only apply while a person chooses to remain an APS employee.
What are the implications of the decision?
Justice Edelman wrote in the decision that: ‘the Code that now regulates their behaviour no longer turns public servants into lonely ghosts … But, properly interpreted, it still casts a powerful chill over political communication.’
The upshot is that if you are a person who is attached to strong political views and would like to express them publicly, do not ‘choose’ to work in the federal public service. Nor should you take a job with state or local levels of government, as the same restrictions on your free speech rights will most likely apply there as well.
Employees in much of the private sector also have their political views restricted by company codes and policies that require them not to damage the reputation of the business. These employees cannot invoke the implied freedom of political communication to support their right to speak out. They might, however, be able to contest dismissal under section 351 of the Fair Work Act which prohibits termination on the basis of political opinion.
Only academics with protections of intellectual freedom (under university enterprise agreements) have the right to publicly express political views that their employer may not care for.
And back to the Folau case? The Banerji decision does not have direct implications, as Folau is seeking to make out a different argument about the right to express religious views under anti-discrimination law.
However I think we can see that the High Court is leaning strongly in favour of employer rights of control over employee speech. It would be strange if a different view was taken in the Folau matter.
This article was originally published on the Labour Law Down Under blog by Anthony Forsyth and has been reproduced with permission.