Insights

The High Court of Australia recently answered this question with a resounding no in the landmark case of Comcare v Michaela Banerji[i] which centred around freedom of political communication and the extent to which an employer can control what their employees say and do outside of work, even when their identity is hidden.

Ms Banerji, an employee of the Department of Immigration and Citizenship, was found to have breached the Australian Public Service (APS) Code of Conduct by making over 9,000 anonymous tweets critiquing government policies and the actions of government officials. The APS consequently terminated Ms Banerji’s employment following an internal investigation which exposed her as the author of the anonymous tweets and the curator of the twitter profile responsible for the damaging content. Ms Banerji attempted to prevent the Department from following through with her termination by appealing to the Federal Circuit Court for injunctive relief. The application was dismissed and a secondary claim was made by Ms Banerji seeking workers compensation under the SRC Act[ii]. This application was also dismissed.

Ms Banerji took matters to the Administrative Appeals Tribunal who ruled in her favour and found that the APS had over stepped the mark by terminating her employment on the basis of tweets that were made anonymously and that did not identify her as a public servant or employee of the Department[iii].

Ms Banjeri’s victory was short-lived, however, when an appeal was bought to the High Court and a unanimous full bench, comprising of Chief Justice Susan Kiefel and Justices Patrick Keane, Geoffrey Nettle and Virginia Bell, decided to overturn the Tribunal’s decision. Their honours found that no breach had occurred and that the restrictions imposed by the APS Code of Conduct were necessary to ensure Australia’s democratically elected government could rely on an impartial Civil Service to execute the policies that it was elected to implement.

The ultimate decision for the court to determine was whether the restrictions imposed by the APS Code of Conduct were necessary and proportionate for the conduct of good and efficient government, or simply an onerous gag on an individual’s right to free speech. In other words, the case was won on the notion that the government is an elected body whose core policies and principles have (by virtue of being elected) been endorsed by the people, and therefore they should be able to rely on faithful public servants to carry out government policies, not frustrate them.

Ms Banjerji’s argument that the limitation imposed should not extend to political comments made from anonymous accounts was rejected on the basis that even anonymous posts can cause significant damage to the good standing of the public service.

This decision has far reaching implications for the multitudes employed in the public sector. It is essentially saying that whatever the political persuasion of the government you are serving, it is not up you to decide whether the polices in place are good or bad for the country. That decision remains firmly in the hands of the elected representatives who embody the will of the people.

The issue of free speech is likely to see a resurgence once again in the Australian law courts in the highly publicised upcoming case of Israel Folau, the rugby union player, whose lucrative multimillion-dollar employment contract was terminated by his employer, Rugby Australia. He was sacked for allegedly making disparaging remarks about homosexuals via his twitter and instagram accounts. Folau claims he was simply exercising his right to express his deeply and honestly held religious views. Rugby Australia (Folau’s former employer) claims that Folau, by virtue of the terms of his employment contract and Rugby Australia’s Code of Conduct, was bound to keep his views on homosexuality private since those views were antithetical to the inclusivity policy of Rugby Union Australia.  It should be noted, however, that although Folau’s case has been framed in the public arena (by Folau and his supporters) as a freedom of speech issue, in actual fact it will be fought in the courts as a breach of section 772 of the Fair Work Act 2009.  It will certainly be interesting to see whether the High Court Banerji decision will have any bearing on the Folau proceedings.

This article was written by lawyer Alexandra Tsingoida.

Image Credit – Julien Tromeur © Shutterstock.com

[i] Comcare v Banerji [2019] HCA 23

[ii] Safety, Rehabilitation and Compensation Act 1988 (Cth)

[iii] Banerji v Bowles [2013] FCCA 1052