Australia: Government employees do not have the implied right to freedom of political communication

Comcare v Michaela Banerji [2019] HCA 23

The implied right to freedom of political communication can be a complex issue for employees. Finding the balance between workplace policies and the ambiguity of "freedom of speech" can be tricky, especially within the context of social media use. In some circumstances, an individual's expression of political opinions can result in findings of misconduct.

The Case

The High Court recently heard the case of Comcare v Michaela Banerji [2019] HCA 23, which concerned the dismissal of an Australian Public Service ('APS') employee working within the Department of Immigration and Citizenship ('the Department'), for allegedly expressing her political opinion anonymously via twitter.

A 2012 investigation into the employee's conduct found that she had breached the APS Code of Conduct ('the Code') by criticising the Department and its policies. This breach resulted in the termination of her employment pursuant to the Code.

What does the Code say?

Ms Banerji argued that the Code imposed an unjustified burden on the implied freedom of political communication. Under the Code, Ms Banerji was required to uphold "APS values and the integrity and good reputation of the APS", with these values including being apolitical, impartial and professional. In the Administrative Appeals Tribunal ('the Tribunal'), Ms Banerji argued that the Code did not apply to her "anonymous" communications because the tweets were not linked to her status as an APS employee.

The Issue

Ms Banerji claimed compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) ('the Act'), for a psychological injury resulting from her dismissal, which was in turn rejected by Comcare.

Under the Act, the definition of an injury excludes injuries suffered as a result of "reasonable administrative action" taken in respect of an individual's employment. In an application to the Tribunal, Comcare's decision was set aside, at which point the case went on appeal from the Tribunal to the High Court on the application of the Attorney General of the Commonwealth.

The High Court's decision

The High Court reaffirmed that the implied constitutional right of freedom of political communication is not a personal right to free speech, but rather a limit on the powers of the legislature. The Code requires the APS to remain impartial in order to serve the government in a professional manner. The High Court found that the Constitution impliedly required this independence so that both legislative and executive branches of government could be held accountable to the Australian people.

The High Court found that the provisions of the Code were consistent with the role that the APS plays in the "constitutionally prescribed system of representative and responsible government". It was further reasoned that the code was constructed to 'minimally' infringe on the freedom of political communication.

The High Court's judgment concluded that the purpose of the Code was to regulate the conduct of APS employees, rather than to expressly target political expression. As such, the code did not apply an unjustified burden on Ms Banerji's right to freedom of political expression. Ms Banerji's dismissal was categorised as "reasonable administrative action" under the Act, barring a claim for workers compensation.

This decision highlighted the fact that the limitations of the Code on APS employees, including political neutrality, are consistent with the constitutional requirement for a system of representative government.

What are the implications of this decision?

Employees need to be mindful when posting on social media, especially with respect to political opinions. The decision in Comcare v Michaela Banerji [2019] HCA 23 allows the APS to require political neutrality from public servants, even when posting anonymously and outside of working hours. In most cases, APS employees will not be protected by the implied right to freedom of political expression and employees may face disciplinary action for conduct that does not uphold APS values.

With that said, the High Court's judgment left it open to challenge disciplinary action by employees if the sanction imposed is 'manifestly excessive' and therefore unreasonable.

In the private sector, employee social media posts also have the potential to damage the relationship between a business and its clients, as well as the business's brand. These risks may be heightened if an employee is posting extreme or controversial political content that reflects poorly upon the business.

It is important for employers to communicate with employees in relation to their behavioural expectations outside of work hours, including on social media.

These expectations should be documented in a social media policy and reinforced by training. Employers need to ensure that their employees are aware of the reasons behind these policies, as well as the consequences of a breach of the policy.

Employers should also note that in order to discipline employees for out of hours conduct, the employee's action must have the necessary nexus to link the conduct to their employment. Employers should also be aware of the relevant anti-discrimination legislation when disciplining employees.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.