Hold Your Fire! Anonymous tweeting can breach the APS Code of Conduct and justify termination

Yesterday the High Court handed down its highly anticipated judgment in Comcare v Michaela Banerji  [2019] HCA 23 and found that an APS employee's anonymous tweets can breach the APS Code of Conduct and justify termination of employment. The High Court overturned the Administrative Appeals Tribunal's (AAT) decision and unanimously held that the restrictions imposed on public servant's abilities to express political views are lawful and constitutional.

The story so far

Between May 2006 and July 2012, Ms Banerji, an employee of the then Department of Immigration and Citizenship, tweeted a number of comments under the handle "LeLegale" that were critical of the Department and policies relating to immigration. The Department found that in making the comments, Ms Banerji had breached the APS Code of Conduct, which relevantly required her to behave honestly, take steps to avoid and disclose conflicts of interest and to be impartial.

Ms Banerji initially sought an injunction to prevent the Department terminating her employment. In Banerji v Bowles [2013] FCCA 1052, Justice Neville dismissed the application and noted that:

"the unfettered right asserted by the Applicant does not exist.... I do not see that Ms Banerji’s political comments, ‘tweeted’ while she remains (a) employed by the Department, (b) under a contract of employment, (c) formally constrained by the APS Code of Conduct, and (d) subject to departmental social media guidelines, are constitutionally protected."

Ms Banerji then lodged a claim for workers compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), claiming aggravation of an underlying psychological condition as a result of the termination. Comcare refused her claim on the basis that her injury was a result of "reasonable administrative action taken in a reasonable manner in respect of the employee's employment".

Ms Banerji appealed this decision to the AAT. The AAT set aside Comcare's decision and found that sections 13(11) and 15 of the PS Act "unacceptably trespassed on the implied freedom of political communication".

The final chapter

The AAT decision was appealed to the High Court, who unanimously found that the application of the PS Code of Conduct to limit the ability of federal public servants to comment on government policy on social media was constitutionally valid and that, consequently, the termination of Ms Banerji's employment was not unlawful and she was not entitled to compensation under the SRC Act.

The primary issue in dispute was whether the relevant sections of the Public Service Act 1999 (PS Act) unjustifiably burdened the implied freedom of political communication. All parties agreed that the relevant parts of the Act burdened the implied freedom of political communication, however the issue for the High Court to decide was whether this burden was justifiable. The High Court held that it was justifiable, on the basis that:

• The relevant parts of the PS Act were for a "legitimate purpose" consistent with the system of representative and responsible government in the Constitution because they were "attuned to the maintenance and protection of an apolitical public service that is skilled and efficient in serving the national interest".
• The law is reasonably appropriate and adapted to achieve that purpose. In finding that the relevant parts of the PS Act were suitable, the High Court referred to the importance of the APS being impartial and professional, regardless of the political persuasion of the government of the day. The fact that APS agencies were required by section 15(3) of the PS Act to establish procedures in relation to the determination of breaches of the Code and sanctions was also relevant to this finding.

Ms Banerji tried to argue that the Code did not extend to communications which were anonymous. The High Court did not make a ruling on this, as it differed fundamentally from the arguments Ms Banerji raised before the AAT, however they did provide some useful comments which suggest anonymous communications can still breach the Code. Specifically, the majority noted that there was no reason to suppose that anonymous communications would not breach the Code and that damage to the APS and an APS employee's agency could still occur even where the posting is done on an anonymous basis.

Their Honours also considered and rejected Ms Banerji's argument that the implied freedom of political communication was a mandatory consideration for a decision-maker when exercising the discretion whether to impose a sanction under section 15 of the PS Act.

What this means for you

This is a significant decision for APS employers. The High Court decision confirms the APS can lawfully regulate its employees' expression of political views and take disciplinary action, up to and including termination of employment, where an employee is critical of the APS and government, even if the views are expressed anonymously. This is also likely the case for state government employers.