© Commonwealth of Australia 2017

Banerji and Comcare (Compensation) [2018] AATA 892 (16 April 2018)

Division: General Division

File Number(s): 2014/5055

Re: Michaela Banerji

APPLICANT

And Comcare

RESPONDENT

DECISION

Tribunal: Deputy President Gary Humphries Dr B Hughson, Member

Date: 16 April 2018

Place: Canberra

The Tribunal sets aside the reviewable decision of 1 August 2014 and instead finds that

on 13 September 2013 Ms Banerji suffered an adjustment disorder characterised by

depression and anxiety, being an injury pursuant to s 14 of the Safety, Rehabilitation and

Compensation Act 1988.

........................................................................

Deputy President Gary Humphries

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Catchwords

COMPENSATION – adjustment disorder characterised by depression and anxiety –

mental injury significantly contributed to by Ms Banerji’s employment – whether

termination of Ms Banerji’s employment for breaches of the APS Code of Conduct was

reasonable administrative action taken in a reasonable manner – reviewable decision set

aside.

CONSTITUTIONAL LAW – implied freedom of political communication – whether the APS

Code of Conduct burdens this implied freedom – whether the Code is reasonably

appropriate and adapted to serve a legitimate end

PUBLIC SERVICE, PROFESSIONS AND TRADE – duty of fidelity and loyalty – whether

the implied freedom of public servants is restricted in certain circumstances – preserving

the capacity of the APS to deliver effective and professional services to the Australian

government

Legislation

Acts Interpretation Act 1903 s 15A

Public Service Act 1999 ss 10, 13, 15, 29

Safety, Rehabilitation and Compensation Act 1988 ss 5A, 14

Cases

A-G (SA) v Corporation of the City of Adelaide [2013] HCA 3

Bailey v Conole (1931) 34 WALR 18

Banerji v Martin Bowles, Acting Secretary, Department of Immigration and Citizenship

[2013] FCCA 1052

Bennett v President, Human Rights and Equal Opportunity Commission (2003) 134 FCR

334

Brown v Tasmania [2017] HCA 43

Central Market Stallholders’ Association Inc v City of Adelaide (1985) 57 LGRA 264

Coleman v Power (2004) 220 CLR 1

Drake v Minister for Immigration and Ethnic Affairs (1999) 46 FLR 409

FCT v Day (2008) 236 CLR 163

Fraser v Public Service Staff Relations Board [1985] 2 SCR 455

Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370

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Haydon v Canada [2001] 2 FC 82

Haydon v Canada [2004] FC 749

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

McCloy v New South Wales (2015) 257 CLR 178

Olsen v City of Camberwell [1926] VLR 58

Osborne v Canada [1991] 2 SCR 69

Rice v Daire (1982) 30 SASR 560

Starr v Department of Human Services [2016] FWC 1460

Wotton v Queensland [2012] HCA 2

Secondary Materials

Christopher Erskine, ‘The Bennett Decision Explained: The Sky is Not Falling!’ (Paper

presented at an AIAL seminar, Canberra, 27 April 2005)

Department of Immigration and Citizenship, Code of Conduct Guidelines

Australian Public Service Commission, Circular 2012/1: Revisions to the Commission’s

guidance on making public comment and participating online (social media) (at 10

January 2012)

Department of Immigration and Citizenship, ‘What is Public Comment?’ Workplace

Relations and Conduct Section Fact Sheet, Department of Immigration and Citizenship

REASONS FOR DECISION Deputy President Gary Humphries Dr B Hughson, Member 16 April 2018

1. Ms Michaela Banerji was an employee of the (then) Department of Immigration and

Citizenship (the Department) when, in September 2013, her employment was terminated

on the basis that she had breached the Australian Public Service (APS) Code of Conduct

(the Code). The conduct relied upon by the Department as the basis for the breach was

Ms Banerji’s use of a Twitter account to post tweets which were highly critical of the then

government, the then minister, certain policies of the Department and the Department’s

Communications Manager, Mr Sandi Logan.

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2. On 18 October 2013 Ms Banerji lodged a claim for workers compensation for post-

traumatic stress disorder under s 14 of the Safety, Rehabilitation and Compensation Act

1988 (the Act). A delegate of Comcare refused this claim on 24 February 2014, and,

following reconsideration, that decision was affirmed on 1 August 2014. Ms Banerji lodged

an application for merits review by the Tribunal on 30 September 2014.

STATEMENT OF AGREED FACTS AND ISSUES

3. There have been many interlocutory steps in the progress of Ms Banerji’s application

before the Tribunal – including proceedings before the Federal Circuit Court, the Federal

Court and the High Court – which have had the effect of delaying its hearing. A hearing

was eventually set down before the Tribunal in November 2017, but shortly before the

hearing the parties reached agreement on a statement of facts and issues, allowing the

matter to be heard (except in one respect) on the papers. That statement is reproduced

here (cross-referencing is omitted):

Decision under review

1. The decision under review is a decision by a Comcare Review Officer (RO) dated

1 August 2014, which affirmed the determination dated 24 February 2014, denying

the applicant’s claim for compensation under s 14 of the Safety, Rehabilitation and

Compensation Act 1988 (the Act) for a psychological condition (the claimed

condition).

Agreed Facts

2. The parties agree that the following statement and the annexed documents

constitute the facts and evidence on which the Tribunal will determine the remaining

issue in this proceeding.

Background

3. On 10 April 2006, the applicant was offered and accepted employment as an

ongoing APS 6 employee within the Ombudsman and HREOC section of the

Department of Immigration and Border Protection (DIBP).

4. The date of commencement to the ongoing position was agreed to be 29 May 2006.

The applicant commenced her ongoing role on that date.

Current claim for compensation

5. On 18 October 2013, the applicant submitted a further claim for compensation under

s 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act) for a

psychological condition (‘post-traumatic stress disorder’) arising from events leading

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to and including the termination of her employment for a breach of the Public

Service Code of Conduct.

6. The date of injury was given as 13 September 2013. This was the date on which the

applicant was advised that her employment was terminated for misconduct. The

effective date of the termination was 27 September 2013.

7. As a consequence of the termination, the applicant suffered a ‘disease’, being an

ailment that was contributed to, to a significant degree, by the applicant’s

employment with the Commonwealth within the meaning of s 5B(1) of the Act.

8. The date of onset of the disease was 13 September 2013 being the first day that the

disease resulted in an impairment and incapacity for work.

9. The correct diagnosis of the ailment is ‘an adjustment disorder characterised by

depression and anxiety’ being an aggravation of an underlying psychological

condition.

10. The ailment was suffered as a result of the termination of the applicant’s

employment with the Commonwealth. The applicant would not have suffered the

ailment if the termination of her employment had not occurred.

11. The termination of the applicant’s employment was administrative action taken in

respect of the applicant’s employment.

12. The parties agree that the termination of the applicant’s employment was

reasonable administrative action taken in a reasonable manner in respect of the

applicant’s employment unless the applicant can establish that the termination of her

employment with the Commonwealth falls outside the exclusion in s 5A(1) of the

Act, having regard to the implied freedom of political communication.

The termination decision

13. Prior to 7 March 2012, Ms Banerji tweeted using the twitter handle Lalegale. The

identity of Lalegale was not at that time publicly known. LaLegale commented on

matters relevant to the Department of Immigration and Citizenship portfolio [now

known as the Department of Home Affairs] but did not disclose confidential

information obtained in the course of her employment.

14. On 7 March 2012, the Workplace Relations and Conduct Section received a

complaint from an employee of the Department, Ms Mardi Stewart, Director Internal

and Strategic Communications copied to Mr Sandi Logan, National Communications

Manager. The complaint alleged that the Applicant was inappropriately using social

media in contravention of the APS Code of Conduct.

15. After reviewing the 7 March 2012 complaint, Geofrey McKinnon, Director,

Workplace Relations and Conduct Section, decided that the complaint made by Mr

Logan did not contain sufficient material to proceed with a formal APS Code of

Conduct investigation in relation to the Applicant's alleged conduct. Mr Logan was

advised of this decision orally.

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16. On 9 May 2012, the Workplace Relations and Conduct Section received a second,

more detailed complaint from Mr Logan in relation to the Applicant's conduct. On the

basis of the information contained in the 9 May 2012 complaint, on or around 15

May 2012, Mr McKinnon decided to initiate an investigation in relation to whether the

Applicant's alleged conduct gave rise to possible breaches of the APS Code of

Conduct.

17. On 23 July 2012, the Workplace Relations and Conduct Section of DIBP informed

the Applicant of the decision to initiate an investigation in relation to whether the

Applicant's alleged conduct gave rise to possible breaches of the APS Code of

Conduct.

18. Between 15 May 2012 and 13 September 2012, Ms Lidija Hary, Assistant Director,

Workplace Relations and Conduct Section conducted an investigation into whether

the Applicant's alleged conduct gave rise to possible breaches of the APS Code of

Conduct. Ms Hary prepared an investigation report dated 13 September 2012.

19. On 20 September 2012, Robyn White, Director, Workforce Design and Strategy and

authorised delegate sent a letter to the Applicant setting out a proposed

determination of breach of the APS Code of Conduct. The letter invited the Applicant

to provide a response to the proposed determination of breach.

20. On 20 September 2012, the Applicant sent an email to the Workplace Relations and

Conduct Section providing a response to the proposed determination of breach.

21. On 15 October 2012, Ms White provided a determination of breach to the Applicant.

She determined that the Applicant had breached the APS Code of Conduct, and

proposed a sanction of termination of employment. The Applicant was provided with

7 days to provide a response to the proposed sanction of termination of

employment.

22. On 19 October 2012, Ms White and Mr McKinnon held a meeting with the Applicant

(and her union representative) at the Applicant’s request. An accurate summary of

that meeting is included in the letter of Ms White dated 26 August 2013. Ms Banerji

admitted that she had tweeted under the name @LaLegale under which she

criticised government immigration policy and her direct supervisor.

23. On 19 October 2012, the Applicant sent an email to Mr Logan offering an

‘unreserved’ apology.

24. The Applicant requested and was granted a number of extensions of time to provide

a response to the proposed determination of sanction, including on 2 November

2012.

25. On 1 November 2012, the applicant sought an injunction in the Federal Magistrates

Court of Australia to prevent the Department from proceeding with the proposed

sanction of termination of employment

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26. On 2 November 2012, the Applicant submitted a response in respect of the

proposed sanction of termination of employment.

27. On 2 November 2012, the Applicant's representative, the Media, Entertainment and

Arts Alliance submitted a written response to the proposed determination of

sanction.

28. On 9 November 2012, the Media, Entertainment and Arts Alliance submitted a

further response to be considered.

29. On 11 November 2012, the Applicant submitted a further response dated 9

November 2012.

30. On 17 November 2012, the Applicant withdrew the confession and apology she

gave on 19 October 2012 via an email to Mr McKinnon because she alleged that the

investigative process for the Code of Conduct investigation and termination decision

was flawed.

31. The decision of the Federal Circuit Court in the matter of Banerji v Martin Bowles,

Acting Secretary, Department of Immigration and Citizenship [2013] FCCA 1052,

dismissed the injunction application on 9 August 2013.

32. On 15 August 2013, Mr McKinnon wrote to the applicant setting out the steps the

Department proposed to take to finalise the process relating to the applicant’s

breaches of the APS Code of Conduct given the interim injunction application had

been dismissed. The letter noted that the Department proposed to undertake the

following process to finalise the sanction decision, namely:

32.1. Ms White would consider all of the information provided to her by the applicant

in response to the 15 October 2012 decision;

32.2. Ms White would then write to the applicant, inviting her to make any further

submissions regarding the sanction (if any) to be imposed, and provide her

with a period of 7 days in which to respond, in addition to the opportunities that

had already been provided to be heard; and

32.3. Ms White would then complete the review process and make a determination

under section 15(3) of the Public Service Act 1999 to decide what sanction (if

any) would be imposed.

33. The letter of 15 August 2013, also noted that any sanction imposed would not be

implemented until 14 days after Ms White has made her determination about any

sanction that might apply. On 26 August 2013, Ms White provided the applicant with

a further opportunity to respond to the proposed sanction of termination in line with

the process set out in the letter of 15 August 2013.

34. On 30 August 2013, the Applicant provided a response to Ms White in relation to the

proposed sanction of termination.

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35. On 12 September 2013, Ms White wrote to the applicant setting out her final

decision to impose a sanction of termination of employment under s 15(1)(a) of the

Public Service Act 1999.

36. On 13 September 2013, Mr McKinnon wrote to the applicant and provided her a

notice of termination of employment under s 29(1) of the Public Service Act 1999.

Mr McKinnon was acting at that time as the Assistant Secretary, People Services

and Systems Branch and held a delegation to exercise the power to make decisions

under that section. In making the decision to issue the notice to terminate Mr

McKinnon took into account the terms of s 29, Ms White’s decisions that the

applicant had breached the APS Code of Conduct and the final sanction of

termination of employment. He notified the applicant that the termination decision

would take effect from close of business on 27 September 2013.

37. On 28 March 2014, the Applicant entered into a Deed of Agreement with the

Commonwealth of Australia, represented by the Department, agreeing to settle

proceedings in the Federal Court of Australia in matter no NSD 21 of 2014.

Agreed Issue

38. With respect to the applicant’s claimed condition, the only issue before the

Administrative Appeals Tribunal is:

38.1. whether or not the termination of the applicant’s employment with the

Commonwealth falls outside the exclusion in s 5A(1) of the Act, having regard

to the implied freedom of political communication.

PRINCIPAL ISSUE TO BE DETERMINED BY THE TRIBUNAL

4. A bundle of documents was filed jointly by the parties. Based on this bundle, the parties’

submissions and a perusal of the other documents filed in these proceedings, the Tribunal

is satisfied as to the factual matters which are set out in the parties’ statement of agreed

facts and issues. In particular, the Tribunal is satisfied that the termination of Ms Banerji’s

employment was administrative action taken in respect of her employment, and was

administrative action which contributed significantly to the onset of her ailment of

adjustment disorder characterised by depression and anxiety,1 an aggravation of an

underlying psychological condition from which she suffered. It further finds that she would

not have suffered this ailment if the termination of her employment had not occurred.

There was conflicting medical opinion filed by the parties; however, the Tribunal is

1 In this decision, italicised text is generally used to indicate direct quotations.

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satisfied that there is reasonable evidence on which to find that Ms Banerji suffered from

the claimed condition.

5. Having reached a state of satisfaction on those matters the sole task falling to the

Tribunal, pursuant to the parties’ agreement, is to determine the remaining issue relevant

to the question of whether Ms Banerji has suffered an injury pursuant to s 14 of the Act.

Comcare’s contention is that that the termination of her employment was reasonable

administrative action taken in a reasonable manner, so that liability for her condition is

excluded under the terms of s 5A(1), which provides:

"injury" means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.

6. Ms Banerji contends that the termination of her employment cannot be characterised as

reasonable administrative action carried out in a reasonable manner if it was carried out in

breach of the implied freedom of political communication identified by the High Court in

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

7. The parties lodged submissions addressing the circumstances, if any, in which the implied

freedom of political communication might be exercised. Based on those submissions, the

Tribunal now finds that the termination trespassed on the implied freedom of political

communication, was thus unlawful, and so cannot constitute reasonable administrative

action.

BACKGROUND

8. From approximately January to July 2012 Ms Banerji made a number of tweets under the

Twitter handle LaLegale. It appears that some of her followers were journalists and

politicians. The tweets frequently imparted strong criticism of the then government, the

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then immigration Minister, members of the Commonwealth Parliament, government

immigration policy and the Department’s communications manager, Mr Logan.

9. Examples of those tweets include:

@ASRC1 Rubbish@ Think of the deaths we are responsible for in Iraq! Think of the refugees we have created by our invasion of Iraq!

@taylor_jessie Think of thousands killed in unjust war in Iraq, of Saddam Hussein murdered without trial, of Gadaffi assassination.

@SandiHLogal Substance: asylum. Process: Rule of Law. Result: onshore processing #nodetention @inhumane @nooffshoreprocessing

@whitegirlinasia Where states fail to offer legal asylum to refugees, that state fails. #itsnotwelfare @SandiHLogan

@Correllio @Juliagillard There’s something in common about the way @JuliaGillard uses words and the way that Craig Thomson uses credit cards

Offshore processing is unlawful…IMHO “@janafavero: Wilkie will not sign @OakeyMP Bill…reignite offshore processing http://tiny.cc/he82aw”

@InjusticeFacts While Bob Carr, our new Minister for FA, sheds crocodile tears for 16 deaths in Afghanistan. #intellectualdishonesty #Auspol

When a nation state permits eighty-six percent of detainees to suffer mental health problems, it #fails. Understanding #itsnotwelfare

@BarackObama Tell us a speech about your conversation with @JuliaGillard in Australia implicating country and people in your war games.

DIAC doesn’t see the steps: 1. Is Oz first place of asylum? 2. Is person security cleared? 3. Is person risk persecution? #getitright

@ScottMorrisonMP @jasonclaremp I would prefer you were reading the international convention on refugees! And understanding it!

Indeed! “@dbvalentine: Watching Julia Gillard & Wayne Swan’s “reading” of budget over coffee was just embarrassing #FAIL #abc730 #Auspol”

@NorthcoteIND @abc730 Neither of the parties get it: What are our obligations under international law? #auspol @senatormilne

Oz does not abide by RC. “@GROGParty: @LaLegale @lyndsayfarlow sorry RC and Protocol, not following???”

10. Some of these appear to be retweets by LaLegale of criticisms made by other tweeters.

We take it that RC is a reference to the 1951 United Nations Convention Relating to the

Status of Refugees.

11. An investigation carried out by Ms Lidija Hary of the Workplace Relations and Conduct

Section of the Department concluded on 13 September 2012 that Ms Banerji may have

breached the APS Code of Conduct.

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12. On 15 October 2012 Ms Robyn White, the Departmental Secretary’s delegate, wrote to

Ms Banerji in the following terms:

Breach Decision

After extensive and careful consideration of the facts of this matter, including the written statement you provided to me (as emailed to the ‘Values and Conduct’ email address on 20 September 2012), in regard to the allegations and my proposed breach finding of 20 September 2012, I have determined you have breached the Code at subsections 13(1), 13(7) and 13(11) of the Act.

As outlined in my letter to you of 20 September 2012, my reasons for this decision are that by making in appropriate online comments which were harsh and extreme in their criticism of the Government and DIAC administration to over 700 followers, many of whom are from the journalistic and political arena and by not declaring your outside employment you have failed to:

behave with honesty and integrity in the course of your APS employment and in a way that upholds the APS Values and the integrity and good reputation of the APS; and

take reasonable steps to avoid any conflict of interest (real or apparent) in connection with APS employment.2

While I note that in your response of 20 September 2012 to the proposed breach decision, you state there is no evidence that the account is yours, I disagree. I am satisfied that, on the balance of probabilities, the evidence provided, although circumstantial, does support the conclusion that the LaLegale twitter account is yours. I also disagree with your remark that the twitter comments are simply statements of international law facts. I find that they are often highly critical of the Government, the Minister, the Immigration portfolio and DIAC’s Communication Manager, Sandi Logan. I also find that your statements are in direct conflict with the department’s Code of Conduct Guidelines which state that:

It is not appropriate for DIAC employees to make unofficial public comment that is, or perceived as:

harsh or extreme in its criticism of the government, a member of parliament or other political party and their respective policies that questions the staff member’s ability to work professionally, efficiently or impartially – such comments do not have to relate to the staff member’s area of work

strong criticism of DIAC administration that could disrupt the workplace (grievance resolution already exists within DIAC and those procedures need to be followed)…

2 Although Ms White’s decision was based in part on a finding that Ms Banerji had failed to avoid a conflict of interest concerning her employment, this issue was not pressed in the agreed statement of facts and issues, and the Tribunal takes it that Comcare does not now rely upon this ground for Ms Banerji’s termination of employment.

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13. Ms White then determined that the appropriate sanction for breach of the Code of

Conduct was the termination of Ms Banerji’s appointment. She went on to make the

following comments:

In considering the sanction I have considered the following matters:

That you should have known that your conduct was inappropriate and inconsistent with the department’s APS Values and Code of Conduct. You have been employed by DIAC for approximately six years and as a departmental employee, you have had continual access to the department’s intranet and elearning programs and therefore have had ready access to the Code of Conduct and policy material referred to above.

As a lawyer, it would reasonably be considered that you would be familiar with the relevant legislation, or in deed reasonably expected to understand it.

That you work in the area (National Communications Branch) which is responsible for managing the department’s brand and reputation. In addition, you work in the area responsible for the department’s policy and publications articulating expectations in respect of social networking sites and guidance on their use. This policy clearly states that, even using an alias, you must assume that at some stage it will be known that you are an APS employee.

In your response of 20 September 2012 you indicated that the tweets were simply statements of international law when in fact many of the statements made were making comments about policy regarding immigration detention and processing of refugees, senior government officials, Minsters [sic] and the Prime Minister and many of your followers are from the journalistic and political arena.

...

All of the above indicates to me that you did not behave in a way that upholds the APS Values and the integrity and good reputation of the APS at all times, as required by subsection 13(11) of the Act.

14. In a letter dated 26 August 2013 Ms White wrote to Ms Banerji offering a further

opportunity to make submissions on the proposed sanction. She set out her

considerations in that regard:

It is clear that your actions were inappropriate and inconsistent with the APS Values and Code of conduct and the Department’s social media guidelines. You worked in the National Communications Branch, which has responsibilities including the management of external communication activities (including media liaison), and policy and publications articulating expectations in respect of social networking sites and guidance on their use. Accordingly, I consider that you should have been aware that the comments you were making in relation to policies and programs administered by the Department were wholly inconsistent with your role as an APS employee in the National Communications Branch of the Department.

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The Department’s social media policy was provided to all Departmental staff via email on 1 June 2012. That policy relevantly provides that:

APS employees must still uphold the APS Values and Code of Conduct even when material is posted anonymously, or using an ‘alias’ or pseudonym, and should bear in mind that even if they do not identify themselves online as an APS employee or an employee of their agency, they could nonetheless be recognised as such. As a rule of thumb, irrespective of the forum, anyone who posts material online should make an assumption that at some point their identity and the nature of their employment will be revealed. Social media websites are public forums. Inappropriate public comment on such sites could put employees at risk of breaching the Code of Conduct.

I consider that you were sufficiently aware of the Department’s policy in relation to the use of social media.

You continued to post comments on the LaLegale twitter account after the forwarding of the DIAC policy to all staff on 1 June 2012, which were wholly inconsistent with the Department’s social media policy, and you did not remedy your behaviour.

You also continued to post material that related to the Department’s policies and programs and government actions and actors after you were notified that an investigation into alleged misconduct relating to your use of Twitter had commenced, and after you were informed of my decision that your conduct constituted serious breaches of the Code. I consider that your conduct to date indicates that it is likely that you will continue to post material in contravention of the APS Values, the Code and the Department’s policies.

At our meeting of 19 October 2012 you made significant admissions in relation to the inappropriate comments on Twitter, expressed contrition and indicated that you had apologised to Mr Logan in writing earlier that day. However, in an email sent to Geoff McKinnon (copied to me) on 7 November 2012, you withdrew “any express or implied admission of wrong doing”. An employee’s contrition will generally constitute a mitigating factor in consideration of an appropriate sanction, your revocation of the admissions and your inconsistent responses to the determination of breach of the Code means that I do not consider that it would be proper for me to afford significant weight to your earlier admissions and contrition in considering what sanction should be imposed.

15. Ms Banerji’s employment was finally terminated on 13 September 2013 by Mr Geoff

McKinnon, another delegate of the Secretary of the Department.

CIRCUMSTANCES SURROUNDING MS BANERJI’S TWEETS

16. There was one factual issue on which there was no agreement between the parties. That

issue was the manner in which Ms Banerji posted one of her tweets. At the request of the

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parties the Tribunal now makes a finding of fact in relation to this question, even though,

as indicated below, it considers that the question has no bearing on the outcome of Ms

Banerji’s application.

17. A statutory declaration of Ms Banerji dated 10 November 2017 was tendered. The

substantive part of the declaration read:

I refer to paragraph 13 of the Agreed Facts. All tweets that were the subject of disciplinary action were done outside work hours and not from work premises, or work equipment.

18. Evidence was taken from Ms Banerji in the hearing, and she was cross-examined on that

evidence. She told the Tribunal:

…all the tweets that I made were in my own time, on my own equipment. I did not at any stage ever, as far as I’m aware, and I certainly don’t agree that I did, tweet using office equipment or office time or sitting at my desk. It was always at home, on weekend, on public holidays, on sick leave, and the reason that I am so sure about those is because I was not speaking for the Department…

She added:

…my motivation for my tweets was essentially to explain the obligations that our country holds in relation to the Refugee Convention…

19. In answer to a question from the Tribunal about when and where she tweeted, she said:

They were all made from a location other than work and that will be evidenced by the time frame… the tweets were after-hours, for a start, but even those tweets where it may have been a daytime tweet, very rarely, that might have been my lunchtime…it might have been a public holiday, it may have been a weekend, I may have been on sick leave. So although I don’t expect that there will be any tweets made during working hours, it’s very important to remember that if any such tweets appear then there’s a subsequent question to be made: was it during my lunchtime? Was it a public holiday? Was it the weekend? Was I on sick leave?

20. Several of these tweets were reproduced and tendered. Counsel for Comcare took the

Tribunal to one sequence occurring on 5 March 2012; the tendered records appear to

show the Twitter handles of the correspondents, the text of the tweets and the time the

tweets were sent. On that day Sandi Logan, the Department’s communications manager,

tweeted:

Melbourne Uni’s first African refugee doctor to graduate in faculty’s 150th year. Read inspiring story of Garang Dut…

At 7:52am Ms Banerji (under the handle @LaLegale) tweeted:

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Perhaps Dut can now make up for deaths and agonies of unlawful, immoral and destructive IDCs. Different kind of ‘refugee camps’

At 8:13am Mr Logan tweeted:

Give it a rest @LaLegale. #DIAC celebrates success, not mired in harping. If you have policy frustration, take it where it will make a diff.

Another tweeter, one Carol Christie, tweeted:

What a rude response! And where would you suggest @LaLegale take her ‘policy frustration’?

Ms Banerji retweeted Ms Christie’s response at 3.14pm. She agreed in her evidence that

retweeting meant that her followers could read Ms Christie’s criticism of Mr Logan.

21. A letter dated 9 November 2012 from Ms Banerji to Ms White, the officer of the

Department who was then considering the sanction of termination of employment against

Ms Banerji, was tendered. Attached was an extensive submission from Ms Banerji setting

out arguments against termination of her employment. In that submission this sentence

appears:

Most of my tweets, except one that was in response to a DIAC tweet that was made in response to extreme provocation by my manager, were donein [sic] my own time and not during working hours.

22. Ms Banerji agreed with counsel for Comcare that the tweet she was referring to in this

paragraph was her tweet at 8:13am on 5 March 2012. Ms Banerji told the Tribunal that

she was surprised she wrote that in her submission because she recalled sending the

tweet from home when she was on sick leave; she said I’m not sure why I wrote that.

23. It was put to Ms Banerji that if her sick leave records showed that she was not on sick

leave that day, then she must have retweeted Ms Christie’s criticism of Mr Logan while

she was at work. She responded there’s logic in what you say… She was asked to

confirm that there was at least one occasion when she tweeted during working hours, as

conceded in her submission of 9 November 2012. She responded that the concession in

that submission was a puzzle to her, and that she did not recall writing it. She said that

she wrote the submission under extreme stress. She later described the concession as an

error, and later again as a total mystery to me. She continued to insist that she was on

sick leave on 5 March 2012.

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24. After leaving the witness box, Ms Banerji submitted from the bar table that the stress at

work was so bad that I sometimes used to have to just go out to walk, and that the tweet

may have been made while on such a walk.

25. Counsel for Comcare sought to tender Ms Banerji’s leave record. Ms Banerji objected to

the tender, but the objection was later withdrawn. The tendered leave record appears to

disclose that Ms Banerji took no leave from work on 5 March 2012.

Consideration

26. Ms Banerji appears to have been a prolific tweeter. Ms Hary noted in her investigation

report that LaLegale had made over 9000 tweets. Yet a cursory examination of the tweets

in evidence before the Tribunal suggests that she had usually been careful, even

assiduous, in avoiding posting tweets during working hours.

27. The Tribunal understands Comcare’s contention to be that Ms Banerji deviated from this

policy on only one occasion, at 3.14pm on 5 March 2012, when she retweeted a tweet

critical of the Department’s spokesman. If there were other tweets purportedly made

during working hours, they were not drawn to the Tribunal’s attention. The Tribunal takes

official notice that 3.14pm on a working day would fall within core public service hours,

and that Monday, 5 March 2012 was not a public holiday in the ACT.

28. Ms Banerji conceded, in writing on 9 November 2012, that she had on one occasion

tweeted during business hours. When confronted with that concession in the witness box

she seemed to retract it, and was unable to explain why she had made it in the first place.

Even if the Tribunal accepts that the statement was written under extreme stress, it is

difficult to understand why the statement would emphatically restate the prudent approach

she took to tweeting generally but then include a specific carve-out for a particular incident

(which she admitted happened on 5 March 2012) unless that is what had actually

happened. The written concession was made eight months after the incident in question;

by contrast, her recollection of this day in the witness box 5 years later seemed confused

and erratic.

29. Her evidence was initially to the effect that any tweet sent during public service business

hours must have been posted on a day when she took sick leave. The Tribunal accepts

the documentary evidence that she did not take sick leave on 5 March 2012. Ms Banerji’s

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late suggestion that the tweet may have been made while she was taking a walk outside

her workplace is unpersuasive.

30. Because we were asked by the parties to make a finding of fact on this question, we find

that Ms Banerji did retweet a comment critical of her employer on Monday, 5 March 2012,

in the course of her employment. However, as indicated below, we believe nothing turns

on this finding.

OBLIGATIONS ON PUBLIC SERVANTS

31. The Public Service Act 1999 (the PSA) sets out, inter alia, the APS values and the Code

for public servants. It has been amended from time to time; the provisions quoted in this

decision were those applying in 2012, when Ms Banerji posted her tweets and when the

investigation was conducted by the Department.

32. Section 10 of the PSA provided:

10 APS Values

(1) The APS Values are as follows:

(a) the APS is apolitical, performing its functions in an impartial and professional manner…

(g) the APS delivers services fairly, effectively, impartially and

courteously to the Australian public and is sensitive to the diversity of the Australian public…

33. Section 13 sets out the Code. In 2012 the relevant provisions read as follows:

(1) An APS employee must behave honestly and with integrity in the course of APS employment…

(7) An APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment…

(11) An APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS…

34. Sanctions for breach of the Code are set out in s 15, which read:

Breaches of the Code of Conduct

Sanctions that may be imposed

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(1) An Agency Head may impose the following sanctions on an APS employee in the Agency who is found (under procedures established under subsection (3)) to have breached the Code of Conduct:

(a) termination of employment;

(b) reduction in classification;

(c) re-assignment of duties;

(d) reduction in salary;

(e) deductions from salary, by way of fine;

(f) a reprimand…

35. Both the Public Service Commissioner and the Department have promulgated guidelines

to guide employees. The Tribunal is entitled to consider these guidelines in assessing the

extent, if any, to which Ms Banerji may have breached her obligations under the PSA. In

Drake v Minister for Immigration and Ethnic Affairs (1999) 46 FLR 409 the Federal Court

observed (at 420):

In some cases, the Tribunal may be expressly required by the Act conferring the right of appeal to regard itself as bound by the principles formulated by the Minister in administering some aspect of the Act: see, for example, Dairy Industry Stabilization Act 1977 (Cth), ss 11A and 24A. But that is not the case here. There was not, in the present matter, any express statutory provision either requiring or authorizing the Tribunal to determine the matter in accordance with relevant government or ministerial policy.

In a matter such as the present where it was permissible for the decision maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision. It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself. If the original decision maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.

36. The guidelines promulgated by the Department (the Department Guidelines) offered, at

the relevant time, the following guidance to departmental staff in relation to the use of

social media:

Use of social media by DIAC employees…

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Making public comment

Public comment, in its broadest sense, includes comment made on political or social issues at public speaking engagements, during radio or television interviews, on the internet... Today, the ability to make comment on any issue, whether it relates to public or personal attitudes or perceptions is greatly enhanced by the ability to access the internet.

Consequently, the synergies between making public comment and participating online require staff to consider their responsibilities to DIAC, the APS Values and the Code of Conduct, including Regulation 2.1, each time they participate in either an official or unofficial (private) capacity.

…

Making comment in an unofficial capacity

…

Private: DIAC employees may generally make comment in their private capacity; however, if must be clear they are expressing their own view having regard to the general principles set out below.

Making public comment in an unofficial capacity – general principles

It is not appropriate for DIAC employees to make unofficial public comment that is, or perceived as:

…

compromising their ability to fulfil their duties professionally in an unbiased manner (particularly where comment is made about DIAC policy and programs)

harsh or extreme in its criticism of the government, a member of parliament or other political party and their respective policies that questions the staff member’s ability to work professionally, efficiently or impartially – such comments do not have to relate to the staff member’s area of work.

strong criticism of DIAC administration that could disrupt the workplace (grievance resolution already exists within DIAC and those procedures need to be followed) …

unreasonable or harsh criticism of DIAC stakeholders, their clients and staff

compromising public confidence in DIAC or the APS.

It is quite acceptable for DIAC employees to take part in the political life of their communities. The APS Values stipulate that the APS is, among other things,

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‘apolitical, performing its functions in an impartial and professional manner’. This does not mean that DIAC employees must be apolitical in their private affairs. Employees should, however, avoid behaving in a ways [sic] which suggests that they cannot act apolitically or impartially in their work…

37. An Australian Public Service Commission Circular (2012/1) outlined, in an advisory rather

than a prescriptive fashion, considerations for public servants making public comments

(the APS Guidelines):

Making public comment

APS employees have the same right to freedom of expression as other members of the community, subject to legitimate public interests, such as the maintenance of an impartial and effective public service in which the community can have confidence.

The term ‘public comment’ is used broadly, and includes comment made on current affairs

at public speaking engagements

during radio or television interviews

on the internet (including blogs, social networking sites and other online media that allow user participation and interaction)…

in other forums where the comment is intended for, or may be accessed by, the community.

Different roles

Broadly speaking, APS employees make public comment in two capacities: official and unofficial.

…

Making comment in an unofficial capacity

Outside the role of their APS employment, employees may wish to make public comment in a professional or a private capacity.

…

Private. APS employees may generally make public comment in a private capacity, so long as they make it clear they are expressing their own views.

In either case, employees should have regard to the general principles set out below.

Making public comment in an unofficial capacity—general principles

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The Code of Conduct requires APS employees to behave at all times 'in a way that upholds the APS Values and the integrity and good reputation of the APS'—section 13(11) of the Public Service Act 1999 (the PS Act). When APS employees are making public comment in an unofficial capacity, it is not appropriate for them to make comment that is, or could be perceived to be:

being made on behalf of their agency or the Government, rather than an expression of a personal view

compromising the APS employee's capacity to fulfil their duties in an unbiased manner. This applies particularly where comment is made about policies and programmes of the employee's agency

so harsh or extreme in its criticism of the Government, a member of parliament from another political party, or their respective policies, that it raises questions about the APS employee's capacity to work professionally, efficiently or impartially. Such comment does not have to relate to the employee's area of work

so strong in its criticism of an agency's administration that it could seriously disrupt the workplace. APS employees are encouraged instead to resolve concerns by informal discussion with a manager or by using internal dispute resolution mechanisms, including the APS whistleblowing scheme if appropriate

a gratuitous personal attack that might reasonably be perceived to be connected with their employment

unreasonable criticism of an agency's clients and other stakeholders compromising public confidence in the agency or the APS.

At all times, APS employees must be mindful of the requirements set out in Public Service Regulation 2.1 concerning the disclosure of information.

…

It is quite acceptable for APS employees to take part in the political life of their communities. The APS Values stipulate that the APS is, among other things, 'apolitical, performing its functions in an impartial and professional manner', but this does not mean that APS employees must be apolitical in their private affairs. Rather, it means that employees should avoid behaving in a way that suggests they cannot act apolitically or impartially in their work.

…

When considering making comment in an unofficial capacity, employees might wish to reflect on the following questions:

Could the comments reasonably be expected to cause the agency's clients and other stakeholders, including members of Parliament—whether members of the Government, the Opposition, independents, or other parties—to lose confidence in the employee's ability to work in an impartial and professional manner?

Would comment of this kind, without proper justification, be likely to lower or undermine the reputation of the individual agency or of the APS as a whole?

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Are these comments in line with how the community in general expects the public service to operate and behave?

Are these comments lawful? For example, do they comply with anti-discrimination legislation and laws relating to defamation?

Inappropriate public comment by APS employees may result in sanctions under the PS Act.

Participating online

General principles

In May 2010 the Government provided its response to the Final Report of the Gov 2.0 Taskforce, Engage: Getting on with Government 2.0. The Government agreed to the report's central recommendation—a 'declaration of open government'—which stated, in part:

online engagement by public servants, involving robust professional discussion as part of their duties or as private citizens, benefits their agencies, their professional development, those with whom they are engaged and the Australian public. This engagement should be enabled and encouraged.

Making public comment online is becoming increasingly common for APS employees—in official, professional, and private capacities. Employees may make public comment on, for example, blogs, social networking sites, microblogging sites, and online news sites. The same principles apply to online comment as to any other kind of public comment—as do the APS Values and Code of Conduct.

However, there are some additional considerations that apply to online participation. The speed and reach of online communication means that comments posted online are available immediately to a wide audience. Material online effectively lasts forever, may be replicated endlessly, and may be sent to recipients who were never expected to see it, or who may view it out of context.

The APS Values and Code of Conduct, including Public Service Regulation 2.1, apply to using online media in the same way as when participating in any other public forum. The requirements include:

behaving with respect and courtesy, and without harassment dealing appropriately with information, recognising that some information

needs to remain confidential delivering services fairly, effectively, impartially and courteously to the

Australian public being sensitive to the diversity of the Australian public taking reasonable steps to avoid conflicts of interest making proper use of Commonwealth resources upholding the APS Values and the integrity and good reputation of the APS not acting in a way that would call into question the APS employee's ability

to be apolitical, impartial and professional in the performance of their duties

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…

Commenting online in an unofficial capacity

From time to time, APS employees may seek to participate robustly, like other members of the Australian community, in policy conversations.

The principles that apply to employees making any unofficial public comment also apply to such comment made online. There are some additional considerations, though, to bear in mind. Any information an APS employee posts online relating to their employment (such as naming their employer or describing their role) is able to be located easily and quickly by a search engine, and this information may be taken out of context.

APS employees must still uphold the APS Values and Code of Conduct even when material is posted anonymously, or using an 'alias' or pseudonym, and should bear in mind that even if they do not identify themselves online as an APS employee or an employee of their agency, they could nonetheless be recognised as such.

Employees should not rely on a site's security settings for a guarantee of privacy, as material posted in a relatively secure setting can still be copied and reproduced elsewhere. Further, comments posted on one site can also be used on others under the terms and conditions of many social media sites.

As a rule of thumb, irrespective of the forum, anyone who posts material online should make an assumption that at some point their identity and the nature of their employment will be revealed. Social media websites are public forums. Inappropriate public comment on such sites could put employees at risk of breaching the Code of Conduct. If employees have concerns relating to an agency, they can seek advice within the agency or from the Ethics Advisory Service about appropriate avenues for raising these…

38. The tenor of these comments in the APS Guidelines was reiterated for employees of the

Department in a document entitled ‘What is Public Comment?’ Workplace Relations and

Conduct Section Fact Sheet, as follows:

… Tips for employees who are considering making public commentary

When considering making a public comment, APS employees need to ensure they fully understand the APS values and Code of Conduct and how they apply to official and unofficial communications. Before doing so, seek advice within the department or from the APSC’s Ethics Advisory Service to ensure any comments you wish to make are appropriate.

…

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In so doing, please reflect on the following questions:

Could the comments reasonably be expected to cause the department’s clients and other stakeholders, including members of Parliament – whether members of the government, the opposition, independents, or other parties – to lose confidence in the employee’s ability to work in an impartial and professional manner?

Would comment of this kind, without proper justification, be likely to lower or undermine the reputation of the department or of the APS as a whole?

Are these comments in-line with how the community in general expects the public service to operate and behave?

Are these comments lawful? For example, do they comply with anti-discrimination legislation and laws relating to defamation.

MS BANERJI’S CONTENTIONS

39. Ms Banerji’s counsel made two submissions to the Tribunal on the question of the implied

freedom of political communication: one following the hearing and a further one in reply to

Comcare’s submission.

40. He characterised her tweets as follows:

(a) Entirely anonymous i.e. with no identification of the author;

(b) Did not use any departmental information i.e. the comments concerned her perception of human rights issues arising from public information concerning the predicament of refugees and the government’s refugee policy.

(c) Ms Banerji’s tweets spanned the transition from the ALP government to the LP government in 2012 and included criticisms of both governments’ refugee policies3;

(d) Did not involve the use of any departmental equipment i.e. all tweets were from her own phone;

(e) With possibly one exception, all tweets were carried out on her own time i.e. not at work.

41. Counsel for Ms Banerji contended that the Code of Conduct must be consistent with both

the principle of legality and s 15A of the Acts Interpretation Act 1903. He observed that:

The Code of Conduct cannot and does not reach the kind of political comment made, in the manner in which it was made, by the Applicant, and accordingly the exercise of the disciplinary power under the Code was inconsistent with the

3 This comment is inaccurate. The change of government occurred in September 2013. Her tweets, however, did criticise figures in both the Government and the Opposition.

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constitutional restraint on burdening the freedom of political communication and is therefore ultra vires.

No ultra vires exercise of a statutory power can be a reasonable one and hence cannot be reasonable administrative action taken in a reasonable manner within the meaning of s 5A of the Act.

42. On the principle of legality, it was submitted:

The principle of legality was affirmed in A-G (SA) v Corporation of the City of Adelaide [2013] HCA 3. This principle requires that statutes be construed so as to avoid as far as reasonably possible encroaching on fundamental rights and freedom at common law, including the freedom of speech. French CJ put it thus:

42. Statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law. The common law presumption against the parliamentary intention to infringe upon such rights and freedoms has been described as an aspect of a "principle of legality" which governs the relationship between parliament, the executive and the courts. The presumption is of long standing and has been restated over many years. It can be taken to be a presumption of which those who draft legislation, regulations and by-laws are aware. To apply it is to act conformably with legislative intention as explained by this Court in Lacey v Attorney-General (Qld).

43. Relevantly, the construction of s 667(1)(9)(XVI) is informed by the principle of legality in its application to freedom of speech. Freedom of speech is a long-established common law freedom. It has been linked to the proper functioning of representative democracies and on that basis has informed the application of public interest considerations to claimed restraints upon publication of information. It is never more powerful than when it involves the discussion and criticism of public authorities and institutions, be they legislative, executive or judicial. An example of its strength in that context is the common law impediment to local authorities and public authorities suing for defamation. The "paramount importance" accorded to freedom of expression and of criticism of public institutions has also played a part in the development of the principles of the law of contempt. It played a part in the reasoning of this Court in Davis v The Commonwealth in the characterisation, for constitutional purposes, of legislation said to be incidental to a substantive head of power. It was also identified as a material consideration in similar reasoning adopted by Mason CJ in Nationwide News Pty Ltd v Wills. On the question whether a law could be said to be reasonably proportional and therefore incidental to a head of power, Mason CJ said:

"in determining whether that requirement of reasonable proportionality is satisfied, it is material to ascertain whether, and to what extent, the law goes beyond what is reasonably necessary or conceivably desirable for the achievement of the legitimate object sought to be attained and, in so doing, causes adverse consequences unrelated to the achievement of that object. In particular, it is material to ascertain whether those adverse consequences result in any infringement of fundamental values

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traditionally protected by the common law, such as freedom of expression." (footnote omitted)

As discussed below, analogous reasoning applies to the determination whether a by-law is, or is capable of being, a reasonable and proportionate, and therefore valid, exercise of the by-law making power. Its effect upon the exercise of freedom of expression will be a material consideration.

His Honour went on say that this common law principle can inform the construction and characterisation, for constitutional purposes, of Commonwealth statutes. (References omitted.)

43. The submission proceeded to argue that s 15A of the Acts Interpretation Act 1901 is

consistent with these principles:

Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power.

44. Ms Banerji submitted that the principle of legality and s 15A should be read in conjunction

with the implied freedom of political communication. Her submission argued:

The Constitutional doctrine known as the implied freedom of political communication places limits on the capacity of any Commonwealth statute, including the Public Service Act 1999, to restrict the right of political communication. The same doctrine and s 15A Acts Interpretation Act 1901 preclude a Commonwealth statute being accorded a construction or application that would exceed the limits of the legislative power i.e. the Public Service Act 1999 cannot explicitly limit freedom of political comment and cannot achieve the same outcome via the manner in which the legislation is:

a) construed (the Legislative restriction); or

b) applied by the Executive (the Executive restriction).

The Applicant contends that the Public Service Act 1999 and its statutory Code of Conduct cannot limit or burden an employee’s common law right or freedom to make the kind of political comments made by Ms Banerji, in the manner in which she made them; nor does it permit the Executive to apply the Code in a manner that has the same outcome.

In short, when a person commences employment with the Commonwealth they are not required and cannot be compelled to turn off their moral and political brain. They are free to engage in the political process in the same manner as other citizens save only that they cannot use or misuse their office in that process.

It is the Applicant’s case that her tweets were inherently of a political nature concerning government policy on refugees. They did not involve the use or misuse of anything arising from her office as a public servant and did not go beyond the generality that features commonly in public criticism of the government’s refugee policy. (Original emphasis)

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45. The submission discusses a number of the seminal cases on the implied freedom

doctrine, which traces its present day genesis to the High Court’s decision in Lange. It

also cites the discussion on the implied freedom in Professor Zines’ The High Court and

the Constitution.4 Zines comments that the doctrine operates as a constraint on both the

Commonwealth’s legislative and executive power. The test for validity of a law or

executive action has two limbs (the Lange test):

When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people... If the first question is answered "yes" and the second is answered "no", the law is invalid. [567-568].

46. Zines further observes that the High Court in Coleman v Power (2004) 220 CLR 1

accepted an amendment to the second limb of the Lange test by insertion of the words in

a manner after the words legitimate end as they appear above. He also opines that

comment on the manner of operation of the government by the Executive are within the

protected communications.5

47. The submission then discussed two seminal decisions of the High Court. In Wotton v

Queensland [2012] HCA 2 the plaintiff had been convicted of rioting in protest relating to

the death in custody of an indigenous man on Palm Island. The Queensland Parole Board

imposed restrictions on his right to attend public meetings and speak with the media. The

conditions were imposed under a statutory power to impose conditions the Board

reasonably considers necessary. The plaintiff sought a declaration of the invalidity of the

statutory provision under which the order was made but did not seek judicial review of the

Board’s actual decision. He argued that the statutory provision infringed the

constitutionally protected freedom of political communication.

4 Leslie Zines, The High Court and the Constitution (Federation Press, 2008). 5 Ibid, 542.

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48. The majority decision in the High Court applied the two Lange tests as modified in

Coleman v Power and held that the imposed condition did burden the freedom of political

communication and thereby infringed the first limb of the Lange test. On procedural

grounds it did not determine the application of the second of the tests in Lange, but noted

that the exercise of the executive power by the Board was constrained by the constitution

restriction on the legislative power (at [21]):

…while the exercise of legislative power may involve the conferral of authority upon an administrative body such as the Parole Board, the conferral by statute of a power or discretion upon such a body will be constrained by the constitutional restrictions upon the legislative power, with the result that in this particular respect the administrative body must not act ultra vires.

49. The submission to the Tribunal notes that in the present case Ms Banerji challenges both

the construction of the statutory provisions (the Code) and its application by her employer.

50. In Brown v Tasmania [2017] HCA 43 the Tasmanian Parliament had enacted legislation

that prohibited political protests in certain Tasmanian forests. The prohibition was

enforceable by arrest where a police officer formed the view that a person was engaging

in protest activity and had ignored a direction to leave the forest. The forests were

otherwise open to access by the public except where forest management activities were

actually occurring.

51. The plaintiff and others were convicted of an offence under that legislation. They

challenged the validity of the legislation and the convictions. The High Court (Gordon J

partly dissenting; Edelman J dissenting) held that these parts of the legislation were

invalid because they impermissibly burden the implied freedom of political communication

contrary to the Constitution.

52. Kiefel CJ, Bell and Keane JJ (Nettle J concurring) addressed both limbs of the Lange test.

In relation to the first limb it was said:

88. It is necessary to keep firmly in mind that the implied freedom is essential to the maintenance of the system of representative and responsible government for which the Constitution provides. The implied freedom protects the free expression of political opinion, including peaceful protest, which is indispensable to the exercise of political sovereignty by the people of the Commonwealth. It operates as a limit on the exercise of legislative power to impede that freedom of expression. The enquiries posed by Lange are the indispensable means by which a legislative measure which is apt to impede the free flow of political

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communications may be justified. The first enquiry is whether the freedom is in fact burdened.

…

90. Where a statute is said to impermissibly burden the freedom, the first enquiry is whether the statute in fact burdens the freedom. The extent of the burden is a matter which falls to be considered in relation to the assessments required by the second limb of Lange. The first enquiry requires consideration as to how the statute affects the freedom generally. It is not answered by reference to the operation of the statute in individual cases, although such evidence may provide useful examples of the statute's practical effect, and therefore of the burden the statute may have on the freedom. This Court has said more than once that the freedom spoken of is not a personal right or freedom. The freedom is better understood as affecting communication on the subjects of politics and government more generally and as effecting a restriction on legislative power which burdens communications on those subjects.

53. It was not disputed that the protestors were engaged in political communications i.e. about

matters relating to politics or government (at [89]) or that the legislation purported to

burden or inhibit those communications (at [95], [118] and [396]). The live issue was the

second limb of Lange.

54. The second limb of Lange has regard to both the legislative intent and the manner in

which that intent is implemented by the legislation (at [103]). The issue for their Honours

concerned the manner in which the legislative intent was implemented i.e. whether the

prohibition on protestors was reasonably appropriate and adapted to serve a legitimate

end of forestry management [123]. Their Honours commented at the outset that It is

difficult to comprehend that every form of protest will necessarily be incompatible with this

purpose (at [110]).

55. Their Honours noted that any burden on the freedom of political communication required

justification under the second limb of Lange; the heavier the burden the greater the

justification needed [128]. It is for those seeking to sustain the burden on the freedom to

advance the justification for it [131]. Their Honours found that the challenged provisions

were directly solely to discouraging protestors and had little to do with forestry

management [135].

56. Ms Banerji’s submission then turned to what it called the potential practical implications of

Comcare’s position. It maintained:

The implications of the Respondent’s position do not stop with people employed under the Public Service Act. There is a plethora of Commonwealth legislation

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under which people are employed which include government instrumentalities and corporations, the ABC, universities, legislation setting up courts and tribunals etc. They each have their own disciplinary and termination provisions performing the same function as the APS Code of Conduct. A finding that these other disciplinary provisions and their implementation are not constrained by the constitutional restriction on impairing free political communications, would expose person employed under these legislations to a summary dismissal for engaging in normal political discourse in a manner that does not involve any use or misuse of their employment.

The ripples of causation do not stop with Commonwealth Acts but extend to regulations and other delegated statutory instruments made under a parent Commonwealth Act. For example, almost all Enterprise Agreements in Australia are made under the Fair Work Act or its predecessor and extend to a large part of the private and public sector in Australia. Most Enterprise Agreements contain the whole or at least the details of the disciplinary provisions. Unions are registered and regulated under the same Commonwealth parent Act If the Respondent’s position is correct then the construction and application of these disciplinary provisions are not subject to the constitutional constraint on burdening free political speech.

If it were the case that the mere engagement in Commonwealth employment ( or any public or private sector employment regulated by Commonwealth Acts, Awards or Enterprise Agreements) precludes an employee from expressing private views inconsistent with the government of the day or their employer (as the case may be), then by way of example only, no public servant or other Commonwealth employees (including judicial officers) could:

(a) express any criticism of the government in the capacity of an active member of the political party in opposition;

(b) participate in a public demonstration against government policies,

(c) engage in industrial action against government wage policy;

(d) express any negative view on government policy to friends over dinner;

(e) make any criticism of government policy when delivering public addresses or conference papers etc.

No private sector employee could privately or publically criticise their employer for political actions taken by the employer (as opposed to the government)…

The issue at stake in this case also extends to employees of State and Territory governments employed under statutes of that jurisdiction…

The sum of the above categories of employees covers most of the employees in Australia, who then stand exposed to the loss of the right to engage in political discourse to the extent that the discourse in question is inconsistent with the interests of their employers.

57. The Submission then proceeds to apply the Lange tests to the Code. It contends:

Communication and public debate concerning the government’s refugee policy is inherently a political one within the meaning of the first limb of Lange. It is probably the single most debated and contested of all governmental policies. Ms Banerji takes this proposition to be self evident and without need of further elaboration.

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If the Code of Conduct can extend to prohibiting Ms Banerji’s participation in private communication, debate and commentary concerning the government’s refugee policy, then it burdens the freedom of political communications within the meaning of the first limb of the Lange test. It is for the Respondent to show that the burden is justified in the circumstances of the case.

This leaves the second limb to be considered. The legislative intent of the Code is to regulate the conduct of APS officers and provide a disciplinary framework.

The Code forms part of a wider statutory employment framework. No part of that statutory framework directly prohibits participation in private political communications. Nor does the Code itself expressly do so. If the Code did extend to the private political communications of an APS officer such as is presently contended by the Respondent, then this must the result of the manner in which the Code is construed. If the construction of the Code does not extend so far then no policy or administrative action on the part of the Public Service Commissioner or Department of Immigration can enlarge on the scope of the Code or affects its construction.

If the Code is construed in a manner that limits its operation by reference to the constitutional freedom of political communication, then it is not open to the Department to purport to apply the Code in a manner that brings it into conflict with the constitutional principle.

The Code is about regulating the conduct of APS officers in that capacity. It is not about regulating their personal political beliefs; and if it were, then the Code would be in open conflict with the Constitution and other human rights laws.

The Code may legitimately regulate public political communications by APS officers where that communication would involve the use of Commonwealth resources or the disclosure of confidential departmental information. It may legitimately regulate public communication in which an APS officer seeks to rely on their office as a basis for, or to lend credibility to, their public statements (Gaynor). But the Commonwealth has no right to demand the intellectual or moral obedience of APS officers to the policies of the government of the day; or to otherwise burden free private political communications by APS officers.

By its actions in dismissing Ms Banerji, the Commonwealth has impermissibly trespassed on the constitutionally forbidden ground of personal political communication.

58. Finally, the submission comments on the application of the APS Guidelines to Ms

Banerji’s position. The submission argues:

The [APS] Guidelines are policy and not law. They are not binding on anyone but do provide relevant considerations for delegates involved in Code of Conduct or other disciplinary inquiries. They are also a relevant consideration for Comcare’s delegate when construing and applying s 5A of the Act.

The Guidelines contain the following statements of general principle. In the generality in which they are expressed, these principles are consistent with the constitutional legislative and executive constraints and consistent with the Applicant’s expression of her private political views:

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APS employees have the same right to freedom of expression as other members of the community, subject to legitimate public interests, such as the maintenance of an impartial and effective public service in which the community can have confidence.

…

It is quite acceptable for APS employees to take part in the political life of their communities. The APS Values stipulate that the APS is, among other things, ‘apolitical, performing its functions in an impartial and professional manner’, but this does not mean that APS employees must be apolitical in their private affairs. Rather, it means that employees should avoid behaving in a way that suggests they cannot act apolitically or impartially in their work.

…

The Guidelines differentiate between:

a) Official and unofficial public comments. Official communications are those made on behalf of the department or government. Unofficial are those made as a departmental employee speaking in that capacity but that does not necessarily represent departmental policy.

b) Professional or private communications.

Broadly speaking, APS employees make public comment in two capacities: official and unofficial.

…

Outside the role of their APS employment, employees may wish to make public comment in a professional or a private capacity

…

Private. APS employees may generally make public comment in a private capacity, so long as they make it clear they are expressing their own views.

The Applicant’s comments were made in a private capacity.

The Guidelines do not specifically address online political comment in a purely private capacity other than the general statements set out above. The Guidelines do address online unofficial political comment which is unapproved comment in a departmental capacity. Unofficial comment is not the same as private comment.

On the issue of unofficial comment the Guide provides:

The Code of Conduct requires APS employees to behave at all times ‘in a way that upholds the APS Values and the integrity and good reputation of the APS’—section 13(11) of the Public Service Act 1999 (the PS Act). When APS employees are making public comment in an unofficial capacity, it is not appropriate for them to make comment that is, or could be perceived to be:

being made on behalf of their agency or the Government, rather than an expression of a personal view

compromising the APS employee’s capacity to fulfil their duties in an unbiased manner. This applies particularly where comment is made about policies and programmes of the employee’s agency

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so harsh or extreme in its criticism of the Government, a member of parliament from another political party, or their respective policies, that it raises questions about the APS employee’s capacity to work professionally, efficiently or impartially. Such comment does not have to relate to the employee’s area of work

so strong in its criticism of an agency’s administration that it could seriously disrupt the workplace. APS employees are encouraged instead to resolve concerns by informal discussion with a manager or by using internal dispute resolution mechanisms, including the APS whistleblowing scheme if appropriate

a gratuitous personal attack that might reasonably be perceived to be connected with their employment

unreasonable criticism of an agency’s clients and other stakeholders

compromising public confidence in the agency or the APS. (emphasis added)

The Guidelines on unofficial comment are principally concerned with the public mistaking private comments for official comments. In the present case Ms Banerji’s comments were entirely unanimous and in no way reflected her identity or place of employment.

If the above were where the policy finished then it may be accepted as being consistent with the constitutional legislative and executive principles. But the Guidelines do not stop there. They go on to provide guidance on private communications (not official or unofficial communications) that is essentially contradictory to the general principles of the Guidelines set out above.

This reversal of policy is achieve by the sleight of hand of deeming any private and anonymous online communication to be an unofficial communication i.e. the author and their place of employment are assumed to be known to the reader notwithstanding the explicit absence of any such identifiers in the communications:

The principles that apply to employees making any unofficial public comment also apply to such comment made online. There are some additional considerations, though, to bear in mind. Any information an APS employee posts online relating to their employment (such as naming their employer or describing their role) is able to be located easily and quickly by a search engine, and this information may be taken out of context… (emphasis added)

The Applicant did neither of the [underlined] things.

The Guidelines continue:

APS employees must still uphold the APS Values and Code of Conduct even when material is posted anonymously, or using an ‘alias’ or pseudonym, and should bear in mind that even if they do not identify themselves online as an APS employee or an employee of their agency, they could nonetheless be recognised as such.

...

As a rule of thumb, irrespective of the forum, anyone who posts material online should make an assumption that at some point their identity and the nature of their employment will be revealed….(emphasis added)

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These assumptions are just that – assumptions. By making this assumption the Guidelines render nugatory the distinction between public unofficial comments and private comments and assimilate the latter into the former. In so doing the Guidelines have the practical effect of banning (or at least discouraging and threatening retribution) private expression of political opinion by APS officers, notwithstanding the Guidelines own recognition that APS officers should have the same freedom of private political expression as other citizens.

In the present case no member of public is shown to have been aware of the Applicant’s identity or place of employment. Her identify was only disclosed by the department following specific IT investigations carried out by the department with the view to locating and identifying the person who had the temerity to criticise its refugee policy.

COMCARE’S CONTENTIONS

59. Comcare’s submission to the Tribunal was summarised as follows:

The Respondent contends that the Code of Conduct provided for in the PS Act, properly construed, is within the legislative competence of the Commonwealth Parliament. Further, the specific exercise of the power fell within the authority conferred by the Parliament on the Delegate and constituted a lawful exercise of the power. Consequently, the decision to terminate constituted reasonable administrative action taken in a reasonable manner.

60. The submission summarises the doctrine of the implied freedom of political

communication, as articulated by the High Court in Lange and Brown, in terms not

substantially different to those advanced by Ms Banerji. The submission continues:

In order to answer these questions it is necessary to consider what is the proper construction of the statute in question.

The relevant restriction on freedom of political communication in the PS Act is s 13(11) which provides that “An APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS”.

The APS Values are found in s 10(1) of the PS Act.

The values which are relevant to considering any question concerning restriction on freedom of political communication are:

(a) The APS is apolitical, performing its functions in an impartial and professional manner;

(e) The APS is openly accountable for its actions, within the framework of Ministerial responsibility to the Government, the Parliament and the Australian public.

61. After observing that the long-established common law freedom of speech is a freedom

which the principle of legality protects, the submission proceeds:

Relevant statutory context includes the following:

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Section 3:

The main objects of the Act are:

(a) To establish an apolitical public service that is efficient and effective in serving the government, the Parliament and the Australian public…

(d) To establish rights and obligations of APS employees.

The PS Act is made in a constitutional context which contemplates Ministers who are responsible to Parliament administering departments of state whose officers are appointed pursuant to an Act of Parliament.

Having regard to this context the following can be said about s 13(11) of the PS Act.

First, it regulates the conduct of public servants while they are at work and outside work.

Second, it does so, only to the extent necessary to ensure that the APS Values are upheld and that the integrity and good reputation of the service is not harmed.

Third, to the extent that statements and communications by public servants outside of work fail to uphold the APS Values, by, for example, compromising the APS’s reputation as an apolitical public service or in some other way harming the integrity or reputation of the public service, those statements can constitute a breach of the Code of Conduct. Public Servants are otherwise free to make whatever statements (political or otherwise) they choose outside of work.

62. The submission then considers the application of the Lange test to the Code. It concedes

that the Code does burden the freedom of political communication:

The first Lange question is directed at determining whether the relevant law imposes a meaningful constraint on political communication. But the question is not just a threshold which must be passed to advance to the other Lange questions, the answer also informs the subsequent analysis and the intensity of judicial scrutiny to which the law is subject.

With that in mind, the simple answer to the question of whether political communication is burdened by s 13(11) is yes. However, it is important to note that the burden falls on a narrow class of persons and is narrow in its restriction on political communication.

First, it only applies to persons who choose to be employed in the executive branch of the Commonwealth government. Second, the restriction is limited to political communications which damage the reputation of the Australian Public Service as an apolitical service or otherwise damage the integrity or good reputation of the service or violate the APS Values in some other way. Non-public servants are not affected by the law and public servants remain free to engage in political communications which do not compromise the apolitical nature of the service or which do not otherwise uphold APS Values. That narrow understanding of the scope of s 13(11) is consistent with the operation of the principle of legality.

The APS Commissioner issued guidelines in 2012 entitled Commission’s guidance on making public comment and participating online to ensure that the Executive’s understanding of the limited extent to which public servants were restricted by the

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Code from engaging in political discourse was properly understood. Accepting that the Executive’s interpretation of the law is given no special deference in the Australia legal system, the guidelines present a narrow interpretation of the reach of the Code of Conduct which in the Respondent’s submission is consistent with the proper construction of the Code having regard to the principles identified at paragraphs 29-35 above.

The guidelines provided:

(a) APS employees have the same right to freedom of expression as other members of the community, subject to legitimate public interests, such as the maintenance of an impartial and effective public service

(b) APS employees should avoid behaving in a way that suggests they cannot act apolitically or impartially in their work;

(c) When APS employees are making public comment in an unofficial capacity, it is not appropriate for them to make comment that is or could be perceived to be compromising the APS employee’s capacity to fulfil their duties in an unbiased manner. This applies particularly where comment is made about policies and programmes of the employee’s agency;

(d) It is not appropriate to make comment that is so harsh or extreme in its criticism of the Government, a member of parliament from another political party, or their respective policies, that it raises questions about the APS employee’s capacity to work professionally, efficiently or impartially;

(e) It is not appropriate to make comment that is so strong in its criticism of an agency’s administration that it could seriously disrupt the workplace;

(f) It is not appropriate to make comment that is a gratuitous personal attack that might reasonably be perceived to be connected with their employment;

(g) APS employees must still uphold the APS Values and Code of Conduct even when material is posted anonymously, or using an ‘alias’ or pseudonym, and should bear in mind that even if they do not identify themselves online as an APS employee or an employee of their agency, they could nonetheless be recognised as such;

(h) Comments posted online are available immediately to a wide audience. Material online effectively lasts forever, may be replicated endlessly, and may be sent to recipients who were never expected to see it or who may view it out of context.

The guidelines, which the Respondent submits accurately reflect the scope of the burden imposed by s 13(11) of the PS Act, make clear that there is no general restriction on public servants participating in political communication in their private capacity. However participation must be conducted in manner which does not adversely affect the workplace or undermine confidence in a public servant’s ability to discharge their duties appropriately.

While this is not an onerous burdening of the freedom of political communication, the Respondent accepts that it does constitute a burden nonetheless. Accordingly, the answer to the first Lange question is yes.

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63. The submission then proceeds to ask whether, pursuant to the second limb of Lange, the

purpose of the law is legitimate, in the sense that it is compatible with the maintenance of

the constitutionally prescribed system of representative and responsible government:

The purpose of s 13(11) is directed towards maintaining an apolitical public service, and maintaining public confidence in that service. The maintenance of an apolitical public service is a feature of Westminster style democracies and is entirely consistent with the system of responsible government prescribed by the Australian Constitution…

The importance of maintaining public confidence in the integrity of the public service, and the role that regulating public comment by public servants has in doing so has been recognised in other common law jurisdictions. In Fraser v PSSRB [1985] 2 SCR 455, the Chief Justice of the Supreme Court of Canada noted that:

…a public servant is required to exercise a degree of restraint in his or her actions relating to criticism of government policy, in order to ensure that the public service is perceived as impartial and effective in fulfilling duties.

Accordingly the answer to the second Lange question is yes. The purpose of the law is legitimate and compatible with the system of government prescribed by the constitution.

64. The submission then argues, in considering the third limb of Lange, that the Code of

Conduct is reasonably appropriate and adapted to advance the legitimate object in a

manner that is compatible with the maintenance of the constitutionally prescribed system

of representative and responsible government:

In approaching this question the High Court has provided some additional tools of analysis which assist in answering the question. In particular it can on occasions be useful to ask:

(a) Is the law suitable in the sense of having a rational connection to the purpose of the provision;

(b) Is the law necessary in the sense that there is no obvious and compelling alternative means of achieving the same purpose which has a less restrictive effect on the freedom; and

(c) Is the law adequate in its balance having regard to the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.

The answers to each of those questions lead to the conclusion that the measure is reasonably appropriate and adapted to advance the law’s legitimate objective.

There is clearly a rational connection between the law’s goal of preserving public confidence in an impartial public service and the operation of the law. Indeed because of the way s 13(11) is expressed – directed as it is to upholding the APS Values rather than restricting political communication – it only operates to restrict political communication if the effect of the political communication undermines the

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APS Values or the integrity or good reputation of the APS. Accordingly the law is suitable to achieve its purpose.

The structure of the law also means that it goes only so far as is necessary in restricting freedom of political communication to preserve public confidence in the impartiality and integrity of the public service. If a political communication does not have an effect which undermines the APS Values or the integrity and good reputation of the APS, an APS employee is free to engage in the communication. Accordingly there is no other alternative which would be less restrictive in its impact on political communication but which would achieve the same objective.

For a similar reason, the law is adequate in its balance. There is an adequate balance between the narrow restriction imposed by s 13(11) and the important public interest purpose that it serves.

Consequently, the answer to the third Lange question is yes, the law is reasonably appropriate and adapted to advance its legitimate objective.

In these circumstances the relevant provisions of the PS Act are valid and not inconsistent with the implied freedom of political communication.

65. Comcare’s submission considers whether, if the Code is within the legislative competence

of the Parliament, the Delegate validly exercised that power:

In approaching the question of the validity of the Delegate’s decision to terminate the Applicant’s employment two matters are relevant. First, the analytical framework laid down by the High Court in Wotton v Queensland (2012) 246 CLR 1, and the issues agreed between the parties.

In Wotton, the High Court laid down the following principles which draw a clear distinction between how constitutional issues are addressed and how administrative law issues should be addressed:

(a) While the exercise of legislative power may involve the conferral of authority upon an administrative body, the conferral by statute of a power or discretion upon such a body will be constrained by the constitutional restrictions upon the legislative power, with the result that in this particular respect the administrative body must not act ultra vires;

(b) Where a putative burden on political communication has its source in statute, the issue presented is one of a limitation on legislative power;

(c) Whether a particular application of the statute, by the exercise or refusal to exercise a power or discretion conferred by the statute, is valid is not a question of constitutional law – rather, the question is whether the repository of the power has complied with the statutory limits;

(d) If, on its proper construction, the statute complies with the constitutional limitation, without any need to read it down to save its validity, any complaint respecting the exercise of power thereunder in a given case does not raise a constitutional question as distinct from a question of the exercise of statutory power;

(e) If the power or discretion be susceptible of exercise in accordance with the constitutional restriction upon legislative power, then the legislation conferring that power or discretion is effective in those terms.

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The parties have agreed that the only issue before the Tribunal is whether or not the termination of the applicant’s employment with the Commonwealth falls outside the exclusion in s 5A(1) of the Act, having regard to the implied freedom of political communication.

If the Tribunal determines that s 13(11) of the PS Act is, consistent with the submissions of the Respondent above, not invalid having regard to the implied freedom of political communication, then the section is effective in its terms and the decision of the delegate is not ultra vires. No further consideration of the exercise of the power is necessary or appropriate given the agreement between the parties.

However, if the Tribunal considers it necessary to consider the question of whether the decision of the Delegate was ultra vires, the Respondent submits that the decision of the Delegate was clearly open to her and supported by the legislation.

Section 13(11) of the PS Act required the Applicant to uphold at all times the APS Values and the integrity and good reputation of the APS. In particular this required the Applicant to uphold the value that the APS is apolitical, performing its functions in an impartial and professional manner. These provisions meant that if the Applicant engaged in actions, including political communications which undermined these values, she was susceptible to being dealt with under the Code of Conduct.

The communications the Applicant engaged in did undermine those values and undermine the integrity and good reputation of the APS.

The Applicant:

(a) Directly and publicly criticised in an offensive way the shadow minister for immigration

(b) Directly and publicly criticised her ultimate supervisor within the Department of Immigration

(c) Directly and publicly accused the Australian Government of not complying with its international law obligations

(d) Directly and publicly criticised the Australian Labor Party and the Prime Minister in offensive terms.

Accordingly it was open to the delegate to determine that by making inappropriate online comments which were harsh and extreme in their criticism of the Government and DIAC that the Applicant did breach s 13(11) of the PS Act. The finding of breach and the decision to terminate were open to the Delegate and were not ultra vires…

The proper finding of the Tribunal is that the applicant is not suffering from an injury as defined in the Act because the ailment from which she suffers is the result of reasonable administrative action taken in a reasonable manner.

MS BANERJI’S SUBMISSIONS IN RESPONSE

66. Counsel for Ms Banerji subsequently filed a submission responding to Comcare’s

submission. The following arguments were advanced:

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… the Applicant draws attention to the fact that her anonymous criticisms were of the government and not of the APS which are legally and conceptually different entities. The Code of Conduct and APS Values are about protecting the apolitical reputation of the APS not the government. It is an oxymoron to argue that the government of the day (or a political party) is apolitical and that its apolitical reputation needs to be protected.

The only exception to the above was her anonymous response to a tweet from a departmental officer who then made an online open criticism of the Applicant’s expressed opinions. The departmental officer did not know the identity of the Applicant at the time and so was responding to an unknown citizen but felt it appropriate to do so in his openly declared departmental capacity. The Applicant’s response was to that departmental officer personally and not to or about the APS or department. One could infer from the acceptability of this posting by the departmental officer that tweets by public servants supportive of the government are acceptable but not tweets critical of the government…

In terms of the Code, the Applicant made no criticism of the APS and therefore nothing she said brought the APS into disrepute.

The only reason that the identity of the Applicant as an APS officer became known was because the departmental officer concerned decided to use departmental resources to identify the unknown citizen that had the audacity to respond to the departmental officer’s prior online comment. This was not a case of the Applicant’s identity being apparent of discoverable by her online communicants but rather it was a case of the department actively seeking to find and expose her identity. It is in the nature of a plaintiff in a defamation matter that decides to put the content of the defamation in the public domain and then pleads that the defamatory material has been widely distributed.

…the [APS] Guidelines start off by acknowledging the right of public servants as citizens to participate in the political process which includes criticising the government or its policies. The Guidelines then deal with APS officers making public statement in their APS capacity and distinguish between comments made officially and unofficially. These categories have no bearing on the present matter. The Applicant did not make any public comments in her APS role, either officially or unofficially.

The Commissioner addresses anonymous comments and cautions that the identity of the tweeter could become known. So much is true particularly if the department set outs to identify the author and publically expose their identity. The Respondent does not recite the remainder of the Commissioner’s guideline on this point, namely:

As a rule of thumb, irrespective of the forum, anyone who posts material online should make an assumption that at some point their identity and the nature of their employment will be revealed…

This is important:

(a) On the one hand the Commissioner says that APS officers have the same right as other citizens, which includes the right to criticise the government and its policies which includes the right to do so anonymously;

(b) But on the other hand the case of public servants is special and they should assume that their identity will become known.

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(c) The effect of this ‘assumption’ is to render nugatory the prior right acknowledged in (a) above i.e. the net effect being that public servants have no right to criticise the government in their personal capacity at all and this is inconsistent with the Constitution.

… the Respondent says that the burden on the freedom of political speech is an appropriate response. It is justified by the need to obviate criticism that may result in the loss of reputation of the APS as an apolitical body. The submission again impermissibly conflates the Applicant’s criticism of the government with that of the APS.

There is a more appropriate response. Public servants have the full rights as citizens including the right to criticise the government or its policies as long as they do not do so, explicitly or implicitly, in an official or assumed official capacity; and do not do anything in the course of their employment that uses or misused their public office or information in an unauthorised manner. The Applicant did none of these things.

Finally, the Respondent argues that the implications of the decision to dismiss the Applicant are limited to the special case of public servants. This is not so and has been addressed in the Applicant’s Submissions. The ambit of the Constitutional protection is of general application and the interpretation of the ambit of the protection also raises whether public sector employees generally (not limited to the APS and including federal and state public sectors) can engage in personal criticism of their governments or its policies on pain of dismissal; or whether private sector employees can engage in personal criticism of the political actions of their employer on pain of dismissal. Whatever interpretation a court or tribunal comes to on the ambit of the Constitutional power in the present case must be capable of extension to employees generally.

CONSIDERATION

67. The termination of Ms Banerji’s employment cannot constitute reasonable administrative

action, taken in a reasonable manner in respect of her employment – such that it falls

within the exclusion in s 5A(1) – if it was unlawful pursuant to the doctrine of implied

freedom of political communication. This necessitates an assessment of whether the

tweets on which her termination was based constituted an exercise of that freedom.

Does the Code effectively burden freedom of communication?

68. To make this assessment, the tests stipulated by the High Court in Lange must be

applied. The threshold question involves a characterisation of the statute under which she

was dismissed, the PSA – in particular the Code in s 13. That relevant question is: does

the statute effectively burden freedom of communication about government or political

matters either in its terms, operation or effect?

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69. That it does so seems unarguable. Section 13(11) provides that An APS employee must

at all times behave in a way that upholds the APS Values and the integrity and good

reputation of the APS… The phrase at all times must reasonably be construed as

requiring this behaviour both when an employee is working and when she is not (this

reading of the section is discussed in more detail below). The requirements to uphold the

values (which are defined with specificity in s 10) and the good reputation of the APS must

necessarily preclude an employee who does not share those values, or who wishes to

cast aspersions on the reputation of the APS or a department within it, from expressing

those views, including where to do so amounts to communication on the subjects of

politics and government (per the majority in Brown at [90]). Both parties contended that

the Code does in fact burden the freedom of political communication, with Comcare noting

that the burden falls on a narrow class of persons and is narrow in its restriction on

political communication.

What is the legitimate end which the Code serves?

70. The second part of the Lange test requires an answer to the question: is the law

reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is

compatible with the maintenance of the constitutionally prescribed system of

representative and responsible government? In effect, this requires consideration of two

separate issues:

What, if anything, is the legitimate end, compatible with our system of

representative and responsible government, which the legislation is intended to

serve? and

If there is such an end, is the legislation reasonably appropriate and adapted to

serve it?

71. Comcare submitted that the legitimate end to which s 13(11) is directed is maintaining an

apolitical public service, and maintaining public confidence in that service. It added:

The maintenance of an apolitical public service is a feature of Westminster style democracies and is entirely consistent with the system of responsible government prescribed by the Australian Constitution.

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72. In FCT v Day (2008) 236 CLR 163 the High Court recognised that maintaining public

confidence in the integrity of the public service is a legitimate purpose. The court observed

at [34]:

The public service legislation in Australia has served and serves public and constitutional purposes as well as those of employment, as Finn J observed in McManus v Scott-Charlton. Such legislation facilitates the government carrying into effect its constitutional obligations to act in the public interest. For reasons of that interest and of government the legislation contains a number of strictures and limitations which go beyond the implied contractual duty that would be owed to an employer by many employees. In securing values proper to a public service, those of integrity and the maintenance of public confidence in that integrity, the legislation provides for the regulation and enforcement of private conduct of public servants.

73. In Bennett v President, Human Rights and Equal Opportunity Commission (2003) 134

FCR 334 the Federal Court considered a public service regulation prohibiting APS

employees disclosing information about the public business of their employing agency.

The Commonwealth there characterised the purpose of the regulation as the efficient

operation of Government. Finn J agreed that such a purpose fell within the Lange test of a

legitimate end.

74. The Tribunal observes that an apolitical public service operating impartially in the service

of governments of all political hues is an important asset of the Australian political system.

Although the culture of the public service is a key element in maintaining these values, it

seems axiomatic that those values should be articulated and reinforced through regulatory

instruments governing and guiding the conduct of public servants. In the present case, the

Tribunal is satisfied that the Code can fairly be characterised as serving the legitimate

purpose of maintaining an apolitical public service and maintaining public confidence in

that service.

Is the Code reasonably appropriate and adapted to serve that purpose?

75. In Bennett, the applicant was employed by the Australian Customs Service (Customs)

and was also the President of the Customs Officers Association. He made media

comments about the operations of Customs. He was disciplined for breaching the public

service regulation involving disclosure of information about the public business of

Customs. The Federal Court considered, inter alia, whether the regulation infringed the

implied constitutional freedom of political communication. In finding that it did infringe the

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freedom, Finn J determined that the regulation was aimed at a legitimate end – the

efficient operation of Government – but was not reasonably adapted to furthering that end

without unnecessarily or unreasonably impairing the implied freedom. His Honour took

into account the public interest that might be served by the disclosure of information by

the head of the Customs officers’ union, and then said of the regulation (at [99]):

The dimensions of the control it imposes impedes quite unreasonably the possible flow of information to the community - information which, without possibly prejudicing the interests of the Commonwealth, could only serve to enlarge the public's knowledge and understanding of the operation, practices and policies of executive government.

76. However, his Honour also acknowledged that Mr Bennett owed Customs a duty of loyalty

and fidelity as an inherent requirement of his public service employment. His Honour

observed at [144]:

… there are certain requirements expected of an employee that are so foundational in character as can properly be said to inhere in any employment relationship if the relationship itself is to be one of employment. The duty of loyalty and fidelity is of such a character…

77. Referring to the lack of judicial consideration in Australia of the nature of the duty, his

Honour commented that the duty should be developed so that it does not unnecessarily or

unreasonably impair the constitutional freedom of political communication. The extent to

which this duty must be balanced against the constitutional freedom is a matter to be

contrived both by the particular employment context and by the individual setting in which

it is to be applied (at [125]).

78. Finn J commented on the paucity of the Australian jurisprudence on the question of what

effective constraints are imposed on members of the APS by the duty of loyalty and

fidelity. He did however refer with approval (at [125]) to the development in Canada of

judicial delineation of the freedom of speech of public servants given the precepts of

loyalty, neutrality and impartiality which are hallmarks of a public service in a system of

responsible government.

79. We believe it is helpful to consider some of that Canadian jurisprudence. Writing in AIAL

Forum No 46 Mr Erskine of counsel notes:

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There is every reason to think that the Canadian jurisprudence is germane to Australian legal and political conditions, and that the principles and criteria worked out in Canada would be applicable here.6

80. In Fraser v Public Service Staff Relations Board [1985] 2 SCR 455 the Supreme Court of

Canada considered an appeal from Mr Fraser, a senior public servant with Revenue

Canada. Mr Fraser made comments in a public meeting and on radio critical of Canadian

government policy on metric conversion and the (then) impending Charter of Rights and

Freedoms, for which he was warned and then sacked. He also personally criticised the

leadership style of the prime minister. Speaking on behalf of a nine-member bench, the Chief

Justice opined (at [31]):

The act of balancing must start with the proposition that some speech by public servants concerning public issues is permitted. Public servants cannot be, to use Mr. Fraser's apt phrase, "silent members of society". (Original emphasis)

Against this his Honour postulated (at [43]):

There is in Canada, in my opinion, a similar tradition surrounding our public service. The tradition emphasizes the characteristics of impartiality, neutrality, fairness and integrity. A person entering the public service or one already employed there must know, or at least be deemed to know, that employment in the public service involves acceptance of certain restraints. One of the most important of those restraints is to exercise caution when it comes to making criticisms of the Government.

81. His Honour set out reasons why public servants should not be excluded from the right to

make public comment, but with this qualification (at [36]):

Public servants have some freedom to criticize the Government. But it is not an absolute freedom. To take but one example, whereas it is obvious that it would not be "just cause" for a provincial Government to dismiss a provincial clerk who stood in a crowd on a Sunday afternoon to protest provincial day care policies, it is equally obvious that the same Government would have "just cause" to dismiss the Deputy Minister of Social Services who spoke vigorously against the same policies at the same rally.7

82. His Honour outlined the principles at work in the following way:

39. This analysis and conclusion, namely that Mr. Fraser's criticisms were job-related, is, in my view, correct in law. I say this because of the importance and

6 Christopher Erskine, ‘The Bennett Decision Explained: The Sky is Not Falling!’ (Paper presented at an AIAL

seminar, Canberra, 27 April 2005), 19.We are indebted to Mr Erskine's analysis of the Canadian cases.

7 A deputy minister in Canada is a public service office, not a political one.

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necessity of an impartial and effective public service. There is in Canada a separation of powers among the three branches of government--the legislature, the executive and the judiciary. In broad terms, the role of the judiciary is, of course, to interpret and apply the law; the role of the legislature is to decide upon and enunciate policy; the role of the executive is to administer and implement that policy.

40. The federal public service in Canada is part of the executive branch of Government. As such, its fundamental task is to administer and implement policy. In order to do this well, the public service must employ people with certain important characteristics. Knowledge is one, fairness another, integrity a third.

41. As the Adjudicator indicated, a further characteristic is loyalty. As a general rule, federal public servants should be loyal to their employer, the Government of Canada. The loyalty owed is to the Government of Canada, not the political party in power at any one time. A public servant need not vote for the governing party. Nor need he or she publicly espouse its policies. And indeed, in some circumstances a public servant may actively and publicly express opposition to the policies of a government. This would be appropriate if, for example, the Government were engaged in illegal acts, or if its policies jeopardized the life, health or safety of the public servant or others, or if the public servant's criticism had no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability. But, having stated these qualifications (and there may be others), it is my view that a public servant must not engage, as the appellant did in the present case, in sustained and highly visible attacks on major Government policies. In conducting himself in this way the appellant, in my view, displayed a lack of loyalty to the Government that was inconsistent with his duties as an employee of the Government.

42. As the Adjudicator pointed out, there is a powerful reason for this general requirement of loyalty, namely the public interest in both the actual, and apparent, impartiality of the public service. The benefits that flow from this impartiality have been well-described by the MacDonnell Commission. Although the description relates to the political activities of public servants in the United Kingdom, it touches on values shared with the public service in Canada:

‘Speaking generally, we think that if restrictions on the political activities of public servants were withdrawn two results would probably follow. The public might cease to believe, as we think they do now with reason believe, in the impartiality of the permanent Civil Service; and Ministers might cease to feel the well-merited confidence which they possess at present in the loyal and faithful support of their official subordinates; indeed they might be led to scrutinise the utterances or writings of such subordinates, and to select for positions of confidence only those whose sentiments were known to be in political sympathy with their own.

If this were so, the system of recruitment by open competition would provide but a frail barrier against Ministerial patronage in all but the earlier years of service; the Civil Service would cease to be in fact an impartial, non-political body, capable of loyal service to all Ministers and parties alike; the change would soon affect the public estimation of the Service, and the result would be destructive of what undoubtedly is at present one of the greatest advantages of our administrative system, and one of the most honourable traditions of our public life.’

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83. In our opinion, the context in which the Supreme Court set its consideration of the issues

in this case bears some similarities to that in which Ms Banerji’s comments occurred.

84. In Osborne v Canada [1991] 2 SCR 69 the Supreme Court of Canada considered a

particular legislative prohibition on involvement by public servants in political campaigns. It

observed that the obligations on a public servant increase with seniority. It suggested that

public servants below a managerial role were politically freed to participate in public

debate.

85. In Haydon v Canada [2001] 2 FC 82 (Haydon No 1) the Federal Court of Canada

considered comment made on TV by a doctor employed by the national agency

responsible for testing drugs. The comments were highly critical of government policy on

testing drugs. The doctor was disciplined. The court there considered that the common

law duty of fidelity and loyalty, as set out in Fraser, passed the proportionality

requirements of the Canadian Charter of Rights and Freedoms, which protects free-

speech. However, Tremblay-Lamer J upheld the doctor’s appeal because of the nature

and the context of the criticisms which they were making. Her Honour found (at [120]):

The common law duty of loyalty as articulated in Fraser sufficiently accommodates the freedom of expression as guaranteed by the Charter, and therefore constitutes a reasonable limit within the meaning of section 1 of the Charter.

Where a matter is of legitimate public concern requiring a public debate, the duty of loyalty cannot be absolute to the extent of preventing public disclosure by a government official. The common law duty of loyalty does not impose unquestioning silence.

The possibility of engaging in a balancing of competing interests, namely the government's interest in maintaining an impartial and effective public service and that of an employee to inform the public of any wrongdoing as well as the public's right to have any wrongdoing exposed ensures that proportionality is secured. In cases that fall within the Fraser qualifications, the public interest outweighs the objective of an impartial and effective public service.

86. Her Honour considered that a blanket ban on public servants making comment to the

media went beyond the scope of the duty of loyalty articulated in Fraser.

87. By contrast, the Federal Court in Haydon v Canada [2004] FC 749 (Haydon No 2) found

that the same Dr Haydon was disciplined, this time appropriately, for a different set of

remarks. She told a newspaper that a Canadian government ban on the importation of

Brazilian beef was only about trade, and not about a risk to health. She was described in

the newspaper as a Canadian government scientist. Martineau J observed at [46]:

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Even before the adoption of the Charter, it was recognized that the duty of fidelity could not be invoked against an employee who publicly disapproved of his employer in certain circumstances. In Re Ministry of Attorney-General, Corrections Branch, at pages 160-161, Arbitrator J. M. Weiler notes:

An absolute "gag rule" would seem to be counter productive to the employer for it would inhibit any dissent within the organization. Employee dissidents can be a valuable resource for the decision-makers in the enterprise. Of course this statement does not apply to what we might call "petty" dissidents, i.e., employees who argue with their bosses over matters of every day business judgment, or who slander their supervisors, or who bad-mouth their companies. The dissidents referred to are those employees who learn of wrongdoing and seek to correct it, who see practices or products that may endanger society and seek to correct them, or who are directed to do illegal or immoral acts and object to doing them. For these employees, if no other avenue of redress is available, public expression of certain information, even though it may be critical of the employer, should be encouraged not deterred by fear of losing their job. . . . In my view, each case must be decided on its own facts, taking into account among other factors, the content of the criticism, how confidential or sensitive was the information, the manner in which the criticism was made public, whether the statements were true or false, the extent to which the employer's reputation was damaged or jeopardized, the impact of the criticism on the employer's ability to conduct its business, the interest of the public in having the information made public and so forth.

The duty of fidelity is not designed to protect the employer from all criticism. Nor is an employee's duty of loyalty aimed at the personalities who may occupy a particular position in the corporation or bureaucracy. An employee's duty of fidelity extends to the enterprise not the particular individual who may be managing the enterprise. By the same token, a public servant's loyalty extends to the Government, not the political party who happens to be in office. [My emphasis]

88. His Honour concluded at [69]:

In summary, the question before the Adjudicator was whether the applicant breached her duty of loyalty thereby giving the employer cause for discipline. The applicant did not enjoy an absolute licence, as a public servant, to publicly criticize policies of the Government or to cast doubt on their appropriateness. Considering all of the relevant factors, including the context, the manner and the timing of the reported statements, the decision of the arbitrator to find the applicant guilty of misconduct was one that could reasonably be made based on the evidence on the record. The Adjudicator did not err in law. His interpretation was consistent with the Charter. The duty of loyalty constitutes a reasonable limit to the freedom of expression. Clearly, there has been a balancing of the competing rights. This case is distinguishable from Haydon, and the other cases cited by the applicant. A large and liberal interpretation should be given to the exceptions mentioned in Fraser. However, at the same time, it must be consistent with the objective of maintaining an impartial and effective public service. Clearly, this is not a case of "whistleblowing". The applicant's reported statements, in my opinion, do not involve public interest issues of the same order as in Haydon. They do not address pressing issues such as jeopardy to public health and safety (or Government

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illegality). Moreover, the evidence reveals that the applicant did not check her facts or address her concerns internally before she spoke to The Globe and Mail. It also appears that her statements were not accurate. Nevertheless, they carried significant weight because the applicant is a scientist and they had an adverse impact on the operations of the Government of Canada. As a result, the Adjudicator found that the applicant breached her duty of loyalty and that discipline was warranted. In this regard, I am unable to find any material error. Overall, the decision is not patently unreasonable and indeed it satisfies the reasonableness requirement if a stricter standard of review should be adopted. Accordingly, this application must fail.

89. Erskine distils the principles from the Canadian case law in this way:

1. The duty of fidelity and loyalty owed by public servants involves a balancing process that takes account of the countervailing rights of public servants to take part in a democratic society;

2. The purpose of the duty is to defend both the actual and perceived impartiality of the public service, and thereby enable government agencies to function effectively;

3. The duty is owed to the government of the day, not the political party in power;

4. The duty is owed to the agency that employs the person, and to the government as a whole, rather than to any individual supervisor of the person;

5. However, the duty is not intended to prevent dissent, because dissent can in some cases be beneficial to the agency as well as a reflection of the public servant’s right to participate in a democratic society;

6. The duty is not absolute in all cases, but is tailored precisely to meet the circumstances of the particular case;

7. The duty involves restraint on the part of a public servant;

8. The exceptions to the duty should be given a large and liberal interpretation;

9. Where the disclosure of information involves information received by the government in confidence, or which affects national security, more restraint is required;

10. The more senior the position, the more restraint is required; ‘senior’ in this context is judged by the rank and the degree of involvement in the administration and policy-making of the particular public servant;

11. The closer the connection between the topic of the comment or disclosure and the duties of the public servant, the more restraint is required;

12. The duty does not prevent disclosure or comment on matters of public safety, public health, or illegal government conduct;

13. The duty does not prevent disclosure or comment on matters of legitimate public interest or debate;

14. As a general rule the public servant should first raise concerns internally in relation to matters of concern before making public comment or disclosure;

15. A greater degree of restraint is required where the public servant is to be identified as a public servant in the publication of the comment or disclosure;

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16. As a general rule the public servant should check their facts before making a public comment or disclosure in order to ensure that the facts are correctly stated. 8

Discussion

90. Some definitional clarification is required at this stage of our consideration. The APS

Guidelines, which are broadly reflected in the Department Guidelines, address themselves

to public comment. This term is used, it seems, to refer to comments made on current

affairs in forums where the comment is intended for, or may be accessed by, the

community.9 This explicitly includes comments on social networking sites. We infer that

this stands in contrast to private comment, examples of which might include conversations

with a family member, remarks at a dinner party or a personal letter to a friend.10 It does

not appear as if either set of guidelines set out to regulate private comment by public

servants. Clearly, however, Ms Banerji’s tweets fell into the category of public comment.

91. Obviously, comment may be both public and anonymous. Albeit that they use an advisory

rather than a mandatory tone, the APS Guidelines do seem to treat anonymous public

comment as falling within their regulatory ambit, given passages such as:

APS employees must still uphold the APS Values and Code of Conduct even when material is posted anonymously, or using an 'alias' or pseudonym, and should bear in mind that even if they do not identify themselves online as an APS employee or an employee of their agency, they could nonetheless be recognised as such.

92. For the purposes of this decision we have focused on two categories of public comment:

open comment, where the identity of the public servant is known, and anonymous

comment, where it is not. It seems clear that the guidelines set out to regulate both open

and anonymous comment. In her submissions Ms Banerji refers to private comments she

made on Twitter; however, we consider those comments are better categorised as

anonymous public comment, as defined above.

8 Erskine, above n 6, 24-25.

9 Australian Public Service Commission, Circular 2012/1: Revisions to the Commission’s guidance on making public comment and participating online (social media) (at 10 January 2012), 2.

10 At some points the APS Guidelines appear to use the term private when, in our opinion, what is meant is public but unofficial. We do not adopt the APS Guidelines’ nomenclature in this respect as it is applied inconsistently.

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93. It might be argued that Ms Banerji’s tweets were in fact not anonymous, because

investigation by the Department subsequent to their posting revealed her as the author.

We do not accept that argument. Although there was some suggestion in the evidence

that she had been careless as to the identity of LaLegale, she clearly intended that her

tweets could not be attributable to her. She appears to have taken care not to have used

information which could only have been in her possession as an employee of the

Department, and to have taken care – except on one occasion – not to have tweeted

during working hours. Her subsequent outing as LaLegale cannot be said to change the

character of her activities prior to that point, particularly where it was the Department itself

which dissolved her anonymity.

94. A further question arises as to whether the retweet of Ms Banerji on 5 March 2012 should,

by virtue of having being made in the course of her employment, be treated as an open

comment. We do not think that it should. The retweet, though perhaps injudicious in its

timing, must still be regarded as anonymous.

95. Ms Banerji’s contentions on the Commonwealth’s capacity to restrict political expression

by public servants were, at times, broadly framed:

…when a person commences employment with the Commonwealth they are not required and cannot be compelled to turn off their moral and political brain. They are free to engage in the political process in the same manner as other citizens save only that they cannot use or misuse their office in that process.

It is the Applicant’s case that her tweets were inherently of a political nature concerning government policy on refugees. They did not involve the use or misuse of anything arising from her office as a public servant and did not go beyond the generality that features commonly in public criticism of the government’s refugee policy.

96. The Tribunal takes it that she asserts that these principles are applicable equally to both

open and anonymous expressions of political opinion. For its part, Comcare appeared to

assert that the Code applied with equal force whether the expressions were open or

anonymous. It is convenient therefore for the Tribunal to consider the application of the

implied freedom to comment falling into each category, even though, of course, none of

Ms Banerji’s tweets fell under the rubric of open comment.

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Open comment

97. If an objective such as maintaining an apolitical public service and maintaining public

confidence in that service is, as we have found, a legitimate legislative objective within the

second arm of the Lange test, then it seems all but inevitable that a law serving that

objective might impose some restrictions on open comment by public servants. Indeed,

the decided cases in this area describe circumstances where such restrictions were,

actually or hypothetically, regarded as reasonably appropriate and adapted to serve

similar ends.

98. The High Court in McCloy v New South Wales (2015) 257 CLR 178 formulated what it

called proportionality testing to determine whether a restriction on the implied freedom is

justified. The majority in that decision described the test of proportionality at [2]:

The proportionality test involves consideration of the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test – these are the enquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses:

suitable — as having a rational connection to the purpose of the provision;

necessary — in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;

adequate in its balance — a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.

If the measure does not meet these criteria of proportionality testing, then the answer to question 3 [is the law reasonably appropriate and adapted to advance the legitimate object?] will be "no" and the measure will exceed the implied limitation on legislative power. (Reference omitted.)

99. The majority later added (at [87]):

The purpose of and benefit sought to be achieved by legislative provisions assume relevance in the third stage of the test for proportionality. This stage, that of strict proportionality or balancing, is regarded by the courts of some legal systems as most important. It compares the positive effect of realising the law's proper purpose with the negative effect of the limits on constitutional rights or freedoms. It requires an "adequate congruence between the benefits gained by the law's policy and the harm it may cause", which is to say, a balance. Balancing is required because it is rare that the exercise of a right or freedom will be prohibited altogether. Only aspects of it will be restricted, so what is needed, to determine whether the extent of this restriction is reasonable, is a consideration of the importance of the purpose and the benefit sought to be achieved. Logically, the greater the restriction on the freedom, the more important the public interest

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purpose of the legislation must be for the law to be proportionate. It has been observed that notions of balancing may be seen in Castlemaine Tooheys Ltd v South Australia, in the context of the s 92 freedom. (References omitted.)

100. In Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370 the Federal Court

considered the termination of Major Gaynor’s commission in the Army Reserve by virtue

of his publicly expressed opposition to Defence Force policies on women and

homosexuals. Buchanan J considered that the decision to terminate exceeded the

statutory authority of the regulation in question because it was not reasonably appropriate

and adapted to the legitimate end served by the regulation. However, his Honour

considered that there were circumstances where the special nature of military service

would warrant restrictions on the freedom of political communication of members of the

Defence Force (at [287]):

It may be the case that members of a full time regular service are rarely (if ever) free to publicly express opinions against the policies of the ADF or the decisions of their superiors but the same cannot always be said about members of Reserves.

101. In Bennett Finn J made it clear that the burden of the duty of fidelity and loyalty might

restrict the freedom of speech of public servants in certain circumstances. His Honour

considered that Mr Bennett may have been constrained by virtue of his duty from making

the comments that he did but for the fact that he was also a union official with rights under

the Workplace Relations Act. Many of the Australian and Canadian cases dealing with the

duty of public servants refer hypothetically to alternative forms of the laws under

consideration where a restriction on public comment may be justified. Even Ms Banerji

accepts that restrictions on political communication are justified under some

circumstances: where the communication would involve the use of Commonwealth

resources or the disclosure of confidential departmental information, or where a public

servant seeks to rely on their office to lend credibility to their statements.

102. Such a factual situation arose in Starr v Department of Human Services [2016] FWC1460.

There, a department had dismissed a frontline Centrelink officer for making anonymous

comments on social media about the department’s operations, its clientele and the

political environment in which it operated. Mr Starr had identified himself as an unnamed

employee of Centrelink. The Fair Work Commission (Vice President Hatcher) observed at

[73]:

In my opinion, the reference to the APS being apolitical in s.10(5) [previously s 10(1)(a) of the PSA] is to be read as meaning apolitical in the exercise of its

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functions. The context provided by the rest of the subsection, which provides that it is an APS value to provide the government “with advice that is frank, honest, timely and based on the best available evidence” supports the proposition that the provision is concerned with political impartiality in the exercise of the APS’s functions. The provision is not, when read with s.13(11)(a) [previously s 13(11)], apt to be construed as requiring that all APS employees be apolitical at all times outside of working hours. It may be accepted that, in some cases, the public expression of political views by public servants in their private time might compromise their capacity to carry out their work functions impartially and this might, consequently, contravene s.13(11)(a). This might happen if, for example, a departmental secretary, a policy advisor, a ministerial staff member or a senior diplomat publicly and emphatically criticised the government of the day. However in the case of the vast majority of public servants who perform routine administrative tasks (such as Mr Starr), it is difficult to envisage any circumstance in which the robust expression of political views and criticism of the government outside of work could have an impact on the performance of their duties.

103. Nonetheless, the Commission considered that, while dismissal was an excessively harsh

penalty in response to Mr Starr’s inappropriate comments on social media about

Centrelink’s clients and its operations, it did find that some loss of wages could be

appropriately imposed, notwithstanding that the offending comments had been posted

anonymously. It should be noted that the Commission’s focus was on what it called a

common law right to freedom of expression, rather than the constitutional right identified in

Lange.

104. It seems that the Canadian jurisprudence is illuminative of the appropriate balance to be

struck between the implied freedom and the fostering of an apolitical public service in this

country, given our shared common-law heritage and the existence in both countries of

constitutional guarantees of free speech. Having considered that jurisprudence, and the

small number of Australian decisions in this area, we regard the framework provided by

the Code and the regulations made under it to strike that balance, broadly speaking, with

respect to open comment.

105. The Code and the regulations have the effect of setting parameters for participation in

public debate. In summary, commentary should not be harsh or extreme in criticising

politicians, their policies or their political parties, should not compromise the ability of a

public servant to deal professionally with stakeholders or other public servants and should

not involve gratuitous personal attacks on others within their own workplace. Commentary

should not undermine public confidence in an employee’s own agency.

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106. At the centre of this balancing exercise between free speech and duty to the employer is,

it seems to the Tribunal, a concern with preserving the capacity of the APS to deliver

effective and professional services to the Australian government. The reference in the

PSA to the duty of each employee to uphold the reputation of the APS underscores the

point that that reputation might be considered at risk if individual behaviour contradicts or

undermines the APS Values. In addition, the instruments attempt to preserve workable

relationships between individual public servants and those to whom they are politically

accountable, particularly ministers.

107. The Code and the regulations are evidently directed at preserving the perception that the

APS in general, and public servants in particular, are apolitical and impartial servants of

the government of the day. They address the risk that overtly partisan or disparaging open

comment by a public servant may cause either a member of a government or a member

of the public to have doubts about that public servant’s ability to fulfil their duties in an

unbiased manner. Unquestionably, comment of that kind has the potential to undermine

what the Canadian Supreme Court called the characteristics of impartiality, neutrality,

fairness and integrity which endow a public service in the Westminster tradition. The Code

and the regulations expressly protect the right of the public servant to engage in

commentary and debate on issues concerning politics and government – and even on the

role and conduct of the public service itself. But the right to engage in political

commentary is constrained by the impact certain forms of commentary may have on the

public perception of the APS’s impartiality.

108. The Canadian cases suggest that tone and proportionality are key elements in the valid

exercise of political comment in the constrained circumstances of the public servant. The

right to enter the political discourse is tempered by caution when it comes to making

criticisms of the Government (per Dickson CJ in Fraser at [43]). Thus in Fraser the court

upheld the applicant’s dismissal on the basis of his sustained and highly visible attacks on

government policies, including personal attacks on the prime minister and comparisons of

his government to the Nazi regime. In Haydon No 2 the court upheld disciplinary action

because, inter alia, the applicant’s public pronouncements did not amount to

whistleblowing, did not involve public interest issues of the same order as Haydon No 1,

and were not accurate. It considered that the factors to be considered in such an

assessment included the content of the criticism, the sensitivity of the information, the

manner in which the criticism was made public, its truthfulness or otherwise, the extent of

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damage to the employer’s reputation and the interest of the public in having the

information made public.

109. Had the tweets of Ms Banerji taken the form of open comment, there is little doubt that

they would have attracted some of the features which the caselaw mentioned above

suggest would carry them outside the constitutional protection. Some of the tweets are

reasonably characterised as intemperate, even vituperative, in mounting personal attacks

on government and opposition figures.11 Martineau J in Haydon No 2 quotes with approval

(at [46]) an arbitrator’s distinction between

…those employees who learn of wrongdoing and seek to correct it, who see practices or products that may endanger society and seek to correct them, or who are directed to do illegal or immoral acts and object to doing them…

and

…"petty" dissidents, i.e., employees who argue with their bosses over matters of every day business judgment, or who slander their supervisors, or who bad-mouth their companies.

110. It seems to us, with the greatest respect to Ms Banerji, that she fell more into the second

of those categories, a category which his Honour thought less deserving of the

constitutional protection. She told the Tribunal that her purpose in tweeting was merely to

explain the obligations that our country holds in relation to the Refugee Convention. The

Tribunal has difficulty in accepting this characterisation. It seems to us that the tone of her

tweets carried her contributions beyond mere education and into the realm of partisan

advocacy and personal vitriol.

111. In addition, she ran afoul of the principle distilled by Erskine from the Canadian cases as

the closer the connection between the topic of the comment … and the duties of the public

servant, the more restraint is required. She accused the government of illegal conduct

(notably in respect of its application of the Refugee Convention); however, these

allegations do not take the form of disclosure of illegal conduct of the kind sanctioned in

Bennett or Haydon No 1. She appeared to have been repeating publicly-touted allegations

of illegality, rather than revealing illegal activities that came to her attention as an

employee of the Department.

11For example, consider the following tweet: @Correllio @Juliagillard There’s something in common about the way @JuliaGillard uses words and the way that Craig Thomson uses credit cards.

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112. On the other hand, applying the Canadian principles, she enjoyed a greater freedom of

speech because of her relatively low rank in the Department, and she did not, of course,

identify herself as an employee of the Department.

113. On balance, we consider that Ms Banerji would have breached her duty of loyalty and

fidelity owed to the Department had her tweets been open comment. In that circumstance,

the application of sanctions against her under the Code would have constituted a

proportionate and appropriate application of a law competently designed to preserve the

apolitical and impartial status of the APS. In that context, the importance of the law’s

purpose and the benefit sought to be achieved would have warranted some impingement

on Ms Banerji’s constitutional freedom to express her political views.

Anonymous comment

114. Of course, Ms Banerji’s comments were not open. They were always anonymous.

Comment made in this mode have an entirely different complexion, and – in the present

case – carry entirely different consequences for Ms Banerji.

115. This is because the explicit objectives of a law designed to protect the impartial status of

the APS fall away in the context of comments not ostensibly made by a public servant. In

other words, the positive effect of realising the law's proper purpose (as per the High

Court in McCloy at [87]) is nugatory when the targeted comments are anonymous.

116. Patently, the stated purpose of the APS and Department Guidelines are not well served

when the guidelines are applied to anonymous comment by public servants. Such

comment cannot cause stakeholders to lose confidence in the employee’s ability to work

in an impartial and professional manner, nor can it compromise the employee’s capacity

to fulfil their duties in an unbiased manner. Commentary by a citizen at large has but a

slight potential to undermine the reputation of the individual agency or of the APS as a

whole. A comment made anonymously cannot rationally be used to draw conclusions

about the professionalism or impartiality of the public service. Such conclusions might

conceivably be open if the comments were explicitly attributed to, say, an unnamed public

servant, but that hypothetical situation does not apply to Ms Banerji. Presumably Ms

Banerji’s implied freedom to express her political views was precious to her whether she

expressed those views openly or anonymously. The constitutional protection can have no

greater or lesser weight on account of the way it was exercised. However, a law

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purporting to prevent anonymous expressions of opinion, whatever the situation of the

person using that medium, surely requires powerful and persuasive justification for its

existence if it is to displace the implied freedom of political communication. Almost all of

the public policy considerations underpinning restrictions on the statements of public

officials, including senior public servants and military officers, cease to apply where the

identity of the interlocutor is unknown. On the contrary, restrictions in such circumstances

bear a discomforting resemblance to George Orwell’s thoughtcrime.

117. A law of this quality will struggle to meet the Lange test of one reasonably appropriate and

adapted to serve a legitimate end, namely of protecting the impartiality of the public

service. In undertaking the assessment of strict proportionality or balancing referred to in

McCloy, the Tribunal is faced here, on the one hand, with a serious impingement on Ms

Banerji’s implied freedom and, on the other, with a law only weakly and imperfectly

serving a legitimate public interest. On that assessment, the balance tips markedly in Ms

Banerji’s favour.

118. We do not consider that the burden of the duty of fidelity and loyalty disappears entirely in

the circumstances of anonymous comment. One might expect that an employee, even in

private, should exercise a measure of restraint in badmouthing their employer,

consistently with their duty. However, the burden of the duty is slight in comparison with

the burden on the implied freedom of an employee to express political opinions where to

do so occasions minimal damage to the employer by virtue of the opinions being

expressed anonymously.

119. Kiefel CJ, Bell and Keane JJ in Brown opined at [128]:

It is possible that a slight burden on the freedom might require a commensurate justification. Certainly a heavy burden would ordinarily require a significant justification.

The burden of the Code on Ms Banerji’s freedom was indeed heavy – the exercise of the

freedom cost her her employment. In our opinion, there is no significant justification

available to the employer here for the law which exacted that cost.

Is the Code ultra vires?

120. The Tribunal has found that the use of the Code as the basis for the termination of Ms

Banerji’s employment impermissibly trespassed upon her implied freedom of political

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communication. There is, however, an alternative basis for approaching this factual

situation, namely that the Code itself is within the legislative competence of the

Commonwealth Parliament but that the actual exercise of the power by the delegate is the

cause of trespass upon the implied freedom. In this analysis, the Code is preserved but

the delegate’s decision is ultra vires.

121. In Wotton v Queensland [2012] HCA 2 the High Court considered the proper approach to

characterising a decision made under an impugned legislative power (at [22]-[23]):

22. The Commonwealth submitted that: (i) where a putative burden on political communication has its source in statute, the issue presented is one of a limitation upon legislative power; (ii) whether a particular application of the statute, by the exercise or refusal to exercise a power or discretion conferred by the statute, is valid is not a question of constitutional law; (iii) rather, the question is whether the repository of the power has complied with the statutory limits; (iv) if, on its proper construction, the statute complies with the constitutional limitation, without any need to read it down to save its validity, any complaint respecting the exercise of power thereunder in a given case, such as that in this litigation concerning the conditions attached to the Parole Order, does not raise a constitutional question, as distinct from a question of the exercise of statutory power. These submissions, which were supported by Victoria, should be accepted.

23. The Commonwealth further, and correctly, developed these points by emphasising in oral submissions that if the power or discretion be susceptible of exercise in accordance with the constitutional restriction upon legislative power, then the legislation conferring that power or discretion is effective in those terms. No question arises of severance or reading down of the legislation. There then would be no occasion presented for application of the principle explained as follows by Dixon J in Shrimpton v The Commonwealth:

"[F]inality, in the sense of complete freedom from legal control, is a quality which cannot, I think, be given under our Constitution to a discretion, if, as would be the case, it is capable of being exercised for purposes, or given an operation, which would or might go outside the power from which the law or regulation conferring the discretion derives its force. An exercise of a power, whether legislative or administrative, cannot rise higher than its source, viz., the power itself, and an attempt under the power to make unexaminable what is done in ostensible pursuance of a further delegation of authority must, to that extent, fail." (Reference omitted)

122. Ms Banerji’s submissions, above, regarding the principle of legality and the operation of s

15A of the Acts Interpretation Act 1901 also assist the Tribunal in approaching this

question.

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123. Section 29 of the PSA authorises an agency head to terminate the employment of a public

servant for a breach of the Code. Section 13(11) – one of the provisions of the Code –

required, at the relevant time, that:

An APS employee must at all times behave in a way that upholds the APS values and integrity and good reputation of the APS.

Although Ms Banerji was dismissed on the basis of the breach of two provisions of the

Code, it is clear to the Tribunal that the termination decision rested substantially on her

breach of the provision in s 13(11) – failure to uphold the APS values and the integrity and

good reputation of the APS. In particular, it is clear that the delegate regarded the

requirement to uphold those values at all times as allowing the exercise of a sanction

against her for tweets made anonymously while not at work.

124. Consistent with the approach laid down in Wotton, the Tribunal considers the question of

whether the repository of the power has complied with the statutory limits of the

empowering legislation. Here, that requires an assessment of whether the termination was

within the powers conferred by the PSA. It seems clear to us that it was within those

powers. Termination was an available option to the delegate once it was established that

there had been a breach of the Code; the Code required Ms Banerji to uphold APS values

at all times; in making her anonymous tweets she did not uphold those values. The

delegate acted wholly within the powers available to him.

125. The words at all times must be given their ordinary meaning. It seems unarguable that

those words have the effect of extending the temporal operation of the Code, of requiring

the employee to uphold the values during activities undertaken outside work hours. In this

context, the words also seem to import the notion that the values must be upheld

whatever “hat” the employee was wearing, i.e. whether she was engaging in official or

unofficial activity or speaking publicly or privately.

126. The Tribunal must also consider therefore whether, on its proper construction, the statute

complies with the constitutional limitation: see Wotton (at [22]). Since the PSA evidently

empowers the delegate to terminate an employee’s employment in these circumstances,

and the termination trespassed on the implied freedom, it follows ineluctably that it is the

empowering statute which placed the burden on political communication, and not the act

of the delegate.

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127. The Tribunal observes that reading down or severing the offending part of the PSA would

be no easy matter. Decisions relating to delegated legislation have permitted severance

where certain words, carrying the legislation outside its head of power, could be excised:

see Olsen v City of Camberwell [1926] VLR 58; Rice v Daire (1982) 30 SASR 560; Central

Market Stallholders’ Association Inc v City of Adelaide (1985) 57 LGRA 264. Here,

removing the words at all times does not excise only the offending portion but also some

apparently intra vires scope of the enactment. Arguably, to do so would attain a result

never contemplated by the Parliament (see Dwyer J in Bailey v Conole (1931) 34 WALR

18 at 25).

CONCLUSION

128. It is, however, not the present task of the Tribunal to determine whether the Code is ultra

vires or whether it is intra vires but has been misused by the delegate. The Tribunal’s task

is to determine whether the termination of Ms Banerji’s employment constituted

reasonable administrative action pursuant to s 5A of the Act. Since the Tribunal finds that

the act of termination unacceptably trespassed on the implied freedom of political

communication, it follows that the act of termination was unlawful, and ipso facto cannot

be reasonable administrative action.

129. Accordingly, the Tribunal sets aside the reviewable decision of 1 August 2014 and finds

instead that on 13 September 2013 Ms Banerji suffered an adjustment disorder

characterised by depression and anxiety, being an injury pursuant to s 14 of the Act.

I certify that the preceding 129 (one hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries and Dr B Hughson, Member.

........................................................................

Associate

Dated: 16 April 2018

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Date(s) of hearing: 13 November 2017

Date final submissions received: 17 January 2018

Advocate for the Applicant: Mr Allan Anforth

Counsel for the Respondent: Mr Damien O'Donovan

Solicitors for the Respondent: Australian Government Solicitor