Freedom of Association and Assembly / Protests, Political Expression
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Closed Contracts Expression
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The Australian High Court ruled that the dismissal of a public servant who had run an anonymous Twitter account in contravention of the Australian Public Service Code of Conduct, as set out in the Public Service Act, 1999, was a justified infringement of the Australian implied freedom of political communication. The Court emphasized the importance of an apolitical and impartial public service in the Australian constitutional framework, and held that the Code of Conduct’s limitation of public servants’ ability to comment on political affairs was a legitimate means of achieving that goal. The Court rejected the public servant’s argument that the prohibition of political comment should not extend to anonymous commentary, and held that the application of the Code of Conduct in dismissing the public servant was legitimate.
Michaela Banerji, an employee at the Australian Ombudsman and Human Rights and Equal Opportunity Commission in what later became the Department of Immigration and Citizenship (the Department), set up a Twitter account with the handle @LaLegale, and began tweeting comments which were critical of the Department, Department officials, departmental polities, Government and Opposition immigration policies and Government and Opposition members of Parliament [para. 2]. In March and May 2012, the Workplace Relations and Conduct Section of the Department (the WRCS) received two complaints that Banerji was “inappropriately using social media in contravention of the APS [Australian Public Service] Code of Conduct”. The WRCS investigated the complaint and recommended that Banerji be dismissed. [para. 5]
The conduct of Australian Public Service (APS) employees is governed by the Public Service Act, 1999 (the Act). Section 10(1) of the Act states that “(a) The APS is apolitical, performing its functions in an impartial and professional manner … [and] (g) the APS delivers services fairly, effectively, impartially and courteously to the Australian public and is sensitive to the diversity of the Australian public”. Section 13 of the Act sets out the APS Code of Conduct which includes subsection 1, stating that “[a]n APS employee must behave honestly and with integrity in the course of APS employment”; subsection 7, stating that “[a]n APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment”; and subsection 11, stating that “[a]n APS employee must at all times behave in a way that upholds the APS Values and integrity and good reputation of the APS”. Section 15 of the Act empowers a decision maker to apply various sanctions if an APS employee is found to have breached the code of conduct, including termination of employment, reduction in classification, re-assignment of duties, reduction in salary, deductions from salary, by way of fine, and a reprimand”.
In addition, the Public Service Commissioner and the Department had implemented guidelines to assist employees with complying with their obligations under the Act. These guidelines defined public comment as “comment made on political or social issues at public speaking engagements, during radio or television interviews, [and] on the internet” and specified that it was “not appropriate for a Department employee to make unofficial public comment that is, or is perceived as, compromising the employee’s ability to fulfil his or her duties professionally in an unbiased manner (particularly where comment is made about Department policy and programmes); so harsh or extreme in its criticism of the Government, a member of Parliament or other political party and their respective policies that it calls into question the employee’s ability to work professionally, efficiently or impartially; so strongly critical of departmental administration that it could disrupt the workplace; or unreasonably or harshly critical of departmental stakeholders, their clients or staff.” [para. 17]
Banerji launched court proceedings in the Federal Circuit Court seeking an injunction to prevent the Department from proceeding with the proposed dismissal. During the Court proceedings the Department informed Banerji that it would be dismissing her in terms of section 15 of the Act on 27 September 2013. Banerji lodged a claim under the Safety, Rehabilitation and Compensation Act, 1988 as a result of the termination of her employment and challenged the dismissal at the Administrative Appeals Tribunal. At the Tribunal, Comcare (an Australian statutory body administering Commonwealth workers’ compensation schemes) and Banerji agreed that the termination was reasonable unless Banerji could demonstrate that it infringed the constitutionally implied freedom of political communication. [para. 49] The Tribunal found that the Code of Conduct’s provisions constituted a “serious impingement on Ms Banerji’s implied freedom” and held that “the use of the Code [of Conduct] as the basis for the termination of Ms Banerji’s employment impermissibly trespassed upon her implied freedom of political communication.” [para. 19] The Tribunal held that the implied freedom was infringed, and that Banerji was therefore eligible for compensation.
Comcare appealed the Tribunal’s decision to the High Court of Australia.
The majority judgment of the High Court was authored by Kiefel CJ and Bell, Keane and Nettle JJ. The central issue before the Court was whether the infringement of Banerji’s implied freedom of political communication was justifiable.
Banerji submitted that the provisions of the Act did not apply to anonymous communications, which she defined as “communications whose immediate context evinces no connection to the speaker’s status as an APS employee.” [para. 22] Accordingly, because her tweets did not disclose her true name or that she was an employee of the APS they were anonymous communications and so the Act’s provisions should not apply. In the alternative, Banerji argued that if the Act did apply to anonymous communications they “imposed an unjustified burden on the implied freedom of political communication and were for that reason invalid.” [para. 22] She further submitted, in the alternative, that if the provisions did not impose an unjustified burden, the termination of her employment was vitiated by the decision maker’s failure to take into account the effect of the implied freedom. [para. 22]
The Court criticized the Tribunal’s characterization of the issue, commenting that “it appears to have led the Tribunal to approach the matter, wrongly, as if the implied freedom of political communication were a personal right like the freedom of expression guaranteed by ss 1 and 2(b) of the Canadian Charter of Rights and Freedoms of the freedom of speech guaranteed by the First Amendment to the Constitution of the United State.” [para. 19] With reference to its judgment in Brown v Tasmania (2017) 261 CLR 328, the Court stressed that “the implied freedom of political communication is not a personal right of free speech” and that it should be seen as “a restriction on legislative power which … extends only so far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution.” [para. 20] The Court accepted that while the impact of the law on an individual’s ability to participate in political communication is still relevant, the central question was whether the law’s effect was on political communication as a whole. Accordingly, the Court held that “the way in which the Tribunal decided the matter was misconceived and the Tribunal’s decision must be set aside.” [para. 21]
The Court did not examine Banerji’s argument that the provisions should not apply to anonymous communications on the grounds that she had not raised that argument before the Tribunal. The Court noted that the APS guidelines stipulated that “anyone who posts material online, particularly on social media websites, should assume that, at some point, his or her identity and the nature of his or her employment will be revealed.” [para. 24] The Court emphasized that when there are tweets which criticize the Government, the Opposition or their relevant policies and it is later revealed that the author of the tweets works for the APS, there are bound to be questions about the employee’s professionalism, efficiency and impartiality. In addition, the Court held that there would be damage to the APS’ reputation even if the author’s identity remained undiscovered and, accordingly, the Court held that Parliament could not have intended to exclude communications like Banerji’s.
The Court also rejected Banerji’s argument that the provision did infringe the implied freedom of political communication as a whole. It held that section 13(11) does not prohibit all anonymous communications but only those which violate the APS Values, its integrity and good reputation, there would certainly be situations in which anonymous communications would “so damage the integrity and good reputation of the APS that, on any view of the matter, their proscription would be justified” [para. 26], and that as Banerji had not argued that her dismissal was unjustified given her conduct she “must be taken to have accepted 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.” [para. 27]
The Court noted that it was uncontested that section 10(1) and section 13(11) did impose an effective burden on the implied freedom, but the question was whether that burden was justified. The Court applied a two part test: is there a “legitimate purpose consistent with the system of representative and responsible government mandated by the Constitution”; and is the law “reasonably appropriate and adapted to the achievement of that objective.” [para. 29] The Court held that the purpose of the Act was to establish an “apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public” [para. 30], and that “[t]here can be no doubt that the maintenance and protection of an apolitical and professional public service is a significant purpose consistent with the system of representative and responsible government mandated by the Constitution.” [para. 31]
In respect of the second part of the test, the Court noted that a law would be regarded as reasonably appropriate or proportionate to the achievement of a legitimate purpose when that law is suitable, necessary and adequate in its balance. [para. 32] A law is suitable if it “exhibits a rational connection to its purpose, and a law exhibits such a connection if the means for which it provides are capable of realising that purpose.” [para. 33] The Court held that the provisions were suitable because the purpose of ensuring that APS employees’ decisions are made without political bias could be rationally achieved through the requirement in sections 10(1) and 13(11) that all APS employees behave in a manner that upholds the APS values and protects its integrity and good reputation. [para. 34] The Court noted that once it has found that a law has a significant purpose and is suitable for the achievement of that purpose “such a law is not ordinarily to be regarded as lacking in necessity unless there is an obvious and compelling alternative which is equally practicable and available and would result in a significantly lesser burden on the implied freedom.” [para. 35] The Court rejected Banerji’s argument that the alternative would be to exclude anonymous communications from the provisions’ ambit on the grounds that anonymous communications often cease to be anonymous and even anonymous communications can damage the APS’ reputation.
The Court noted that if the law has been found to be both suitable and necessary it will be regarded as adequate unless the benefit sought to be achieved is “manifestly outweighed” by the adverse effect it would have on the implied freedom. [para. 38] In the present case, this required the Court to determine the “quantitative extent of the burden and the importance of the impugned provisions to the preservation and protection of the system of representative and responsible government mandated by the Constitution.” [para. 38] The Court held that the provisions were adequate in their balance irrespective of what penalties under section 15 would be imposed, and noted that the severity of an employee’s conduct would determine which of the listed penalties would be applied. The Court held that the provisions and the penalties they prescribe “present as a plainly reasoned and focused response to the need to ensure that the requirement of upholding the APS Values and the integrity and good reputation of the APS trespass no further upon the implied freedom than is reasonably justified.” [para. 42]
The Court rejected Banerji’s argument that the decision to terminate her employment was vitiated by the decision-maker’s failure to consider the implied freedom in determining the sanction and noted that the sanctions (including to terminate employment) were proportionate to achieving the goal of an apolitical public service. The Court held that if the decision maker acts reasonably and applies a proportionate penalty to the nature and gravity of the offence, there could not be a risk of an infringement of the implied freedom. This meant, as the Court noted that “[i]f a decision maker imposes a manifestly excessive penalty, it will be unlawful because the decision maker has acted unreasonably, not because of the decision maker’s failure to turn his or her mind to, or failure expressly to mention, the implied freedom.” [para. 44]
The Court emphasized that the argument Banerji made before the Tribunal implied that she accepted that her tweets constituted conduct that failed to uphold the APS values and integrity and good reputation, and that it was too late for her to now argue that the penalty did not accord to the nature and gravity of her contraventions.
The Court, therefore, set aside the Tribunal’s decision.
In a concurring judgment Gageler J focused on the constitutional framework governing the public service and emphasized the need for neutrality of public officials. This judgment noted that the burden imposed on the ability of individuals to make and receive communications through the operation of the Act was not a blanket one: it affected only APS employees and only for so long as they remain in the APS employment. This judgment referred to the case of Wotton v. Queensland (2012) 246 CLR which established the principle that the “validity of a law which burdens freedom of political communication by empowering an exercise of an administrative discretion is to be determined by asking in the first instance whether the burden is justified across the range of potential outcomes of the exercise of that discretion.” [para. 96] If that question is answered in the affirmative, then the law is valid, and there is “no occasion to consider whether the scope of the discretion might be read down in order to ensure that the law is within constitutional power.” [para. 96] With reference to the Canadian case of Osborne v Canada (Treasury Board)  2 SCR 69, this judgment accepted that any law which “confers discretion capable of being exercised to impose a direct and substantial burden on political communication” requires close scrutiny and explained that, in Canada, this has led to the adoption of the “‘strict’ test of ‘minimum impairment’” of the right to freedom of expression. [para. 98] This judgment explained that the Tribunal was wrong in granting an exception to anonymous comments because the Tribunal “focuses only on the importance of the appearance of impartiality and ignores the even greater importance of the actual observance of impartiality.” [para. 105] It noted that confidence and trust in the APS as an apolitical and professional body would be harmed if employees were free to engage in anonymous political praise or criticism.
Gordon J also delivered a concurring judgment, emphasizing the need for political neutrality in the APS. This judgment provided an historical analysis of APS Guidelines on participation in political and public debate which all demonstrated a strong commitment to the need for the public service to be apolitical, impartial and professional. This judgment stated that “[t]he implied freedom of political communication is a limit on legislative and executive power.” [para. 135] It emphasized the role an apolitical public service played in the Australian constitutional system of responsible government and concluded that the purpose of the burden on the implied freedom was the preservation of a defining characteristic of responsible government and that, therefore, “[n]o greater justification is required.” [para. 161] This judgment stressed that the provisions burdening the implied freedom are limited as they must be read in conjunction with the Act as a whole, they apply only to APS employees and so not the public at large, and they do not specifically target political communication. This means, the judgment noted, “not all public comment by a public servant will be found to be in breach of the statutory scheme – only those comments that fail to uphold the APS Values or the integrity and good reputation of the APS and, thus, fail to uphold an essential part of what is necessary for responsible government.” [para. 140] In addition, the judgment stressed that “the content of the burden is transparent” because the Act contains specific procedures for the determination of a breach and an independent assessment of the sanction’s suitability. [para. 141]
Edelman J also delivered a concurring judgment, which noted that although the ban on public servants’ public political communication was no longer absolute, the Code of Conduct did still “cast a powerful chill over political communication” and compared the Australian situation to that of America, noting that “legislative restrictions of the nature adopted historically in Australia would be struck down as unconstitutional in a heartbeat [in the United States].” [para. 164] This judgment stressed that “in Australia the boundaries of freedom of speech are generally the province of parliament; the judiciary can constrain the choices of a parliament only at the outer margins for reasons of systemic protection” [para. 164], and succinctly described the nature of the implied right in Australia: The freedom of political communication that is implied in the Commonwealth Constitution is highly constrained. It is not an individual freedom. It is an implied constraint that operates directly upon legislative power. It does so by restricting that power only so far as necessary for the effective functioning of the system of representative and responsible government. [para. 164]
The implied freedom is constrained by the requirement of necessity which means that “freedom of political communication is not a trump over other values that are sought to be implemented in legislation that gives effect to government policy.” [para. 165] This judgment held that even though there were “deep and broad constraints on freedom of political communication” imposed by section 13(11), “the law is reasonably necessary and adequately balanced.” [para. 166]
This judgment concluded that the Act does not preclude a public servant from making a political comment on social media as it simply creates a boundary “between acceptable expression of political opinions and unacceptable expression of political expressions.” [para. 182] The boundary lies in when a comment imperils the trust between the APS and Parliament, executive government and the public. This judgment provided six factors to be considered when determining whether that trust has been imperiled: the public servant’s seniority; whether the comment relates to the public servant’s direct duties; the nature of the comment (whether it is “vitriolic criticism” or “objective and informative policy discussion”); whether there was an intention or reasonable foresight that the communication would be disseminated widely; that there was an intention or reasonable foresight that the communication would be associated with the APS; and what the public servant expected or could reasonably have expected a member of the public to conclude about the effect of the comment on the public servant’s duties. [para. 183] Given these factors, the judgment noted that anonymity of the author will be only one factor to consider in determining the impact on the trust.
This judgment referred to the Privy Council case of deFreitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69 which emphasized that the preservation of civil servants’ impartiality was necessary in preserving public confidence in the conduct of public affairs. This judgment rejected Banerji’s submission that the provisions lacked a rational connection to the legislative purpose, and noted that “[i]f the operation of a law purports to further its legitimate purpose by means that are more extreme than would rationally be expected, then this does not break the rational connection between the means adopted by the law and its purpose.” [para. 192]
This judgment confirmed that the burden imposed by sections 13(11) and 15) is deep and wide by permitting the termination of employment and imposing on an APS employee’s public communications even when they are not at work. However, the judgment noted that this is not as deep and wide a burden as used to apply to Australian public servants and that there are procedures – such as review mechanisms and the Fair Work Act, 2009 – which mitigate the effect of the provisions. The judgment rejected Banerji’s argument that an alternative law could exempt anonymous communications, commenting that the purpose of the provision – to protect trust in the APS – could be undermined if anonymous comments were permitted.
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The High Court of Australia held that a public servant’s implied freedom of political expression can be justifiably constrained by the operation of the Australian Public Service Code of Conduct which prohibits the public expression of political views. The Court stressed the importance of an impartial and neutral civil service in the Australian constitutional framework of responsible government, and found that as the purpose of the Code of Conduct was to preserve this neutrality the limitations on employees’ expression was justified.
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