Comcare v Banerji

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Bell,Keane,Nettle JJ.,Edelman J.
• Judgment Date: 07 August 2019
• Neutral Citation: [2019] HCA 23
• Court: High Court
• Docket Number: C12/2018
• Date: 07 August 2019

[2019] HCA 23

HIGH COURT OF AUSTRALIA

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ

C12/2018

Comcare

Appellant

and

Michaela Banerji

Respondent

Representation

B J Tronson for the appellant (instructed by Australian Government Solicitor)

R Merkel QC with C G Winnett and C J Tran for the respondent (instructed by Lander & Co)

S P Donaghue QC, Solicitor-General of the Commonwealth, and C L Lenehan with J D Watson for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales, with F I Gordon for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor's Office (NSW))

C D Bleby SC, Solicitor-General for the State of South Australia, with L Gavranich for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor's Office (SA))

J A Thomson SC, Solicitor-General for the State of Western Australia, with N T L John for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor's Office (WA))

Australian Human Rights Commission appearing as amicus curiae, limited to its written submissions

Fair Work Act 2009 (Cth), Pt 3.2.

Public Service Act 1999 (Cth), ss 10(1), 13(11), 15(1), 33(1).

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A(1), 14.

Constitutional law (Cth) — Implied freedom of communication on governmental and political matters — Where Australian Public Service (“APS”) Code of Conduct (“Code”) included requirement in s 13(11) of Public Service Act 1999 (Cth) that employees behave in way that upholds APS Values and integrity and good reputation of APS — Where APS Values in s 10(1) of that Act included that APS is apolitical, performing functions in impartial and professional manner — Where Agency Head empowered by s 15(1) of that Act to impose sanctions on employee found to have breached Code, including termination of employment — Where employee of government Department published tweets critical of Department, its employees, policies and administration, Government and Opposition immigration policies, and members of Parliament — Where employment with Commonwealth terminated for breach of Code — Where employee claimed compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) for “injury”, defined to exclude injury suffered as result of reasonable administrative action taken in reasonable manner in respect of employee's employment — Whether ss 10(1), 13(11) and 15(1) of Public Service Act impose effective burden on implied freedom — Whether burden on implied freedom justified — Whether impugned provisions for legitimate purpose — Whether provisions suitable, necessary and adequate in balance.

Words and phrases — “adequate in its balance”, “anonymous”, “apolitical”, “APS Code of Conduct”, “effective burden”, “impartial”, “implied freedom of political communication”, “integrity”, “legitimate purpose”, “necessary”, “public servants”, “public service”, “reasonably appropriate and adapted”, “suitable”, “system of representative and responsible government”, “tweets”, “unjustified burden”.

ORDER

• 1. Appeal allowed.

• 2. Set aside the decision of the Administrative Appeals Tribunal made on 16 April 2018 and, in its place, order that the reviewable decision of 1 August 2014 be affirmed.

• 3. The respondent pay the appellant's costs of the appeal.

1 Kiefel CJ, Bell, Keane and Nettle JJ. This is an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) removed into this Court pursuant to s 40(1) of the Judiciary Act 1903 (Cth) on the application of the Attorney-General of the Commonwealth (intervening). The question for decision is whether, as the Tribunal held 1, ss 10(1), 13(11) and 15(1) of the Public Service Act 1999 (Cth) as at 15 October 2012 (“the impugned provisions”) imposed an unjustified burden on the implied freedom of political communication, with the result that the termination of the respondent's employment with the Commonwealth for breaching the Australian Public Service (“APS”) Code of Conduct was not reasonable administrative action taken in a reasonable manner with respect to her employment within the exclusion in s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Compensation Act”). For the reasons which follow, the impugned provisions did not impose an unjustified burden on the implied freedom of political communication, and the termination of the respondent's employment with the Commonwealth was not unlawful.

The facts

2 The uncontroversial facts of the matter were as follows. On 10 April 2006, the respondent was offered and accepted employment as an ongoing APS 6 employee within the Ombudsman and Human Rights and Equal Opportunity Commission Section of what became the Department of Immigration and Citizenship (“the Department”) 2. She commenced work in that position on 29 May 2006 3. At some time prior to 7 March 2012, she began broadcasting tweets on matters relevant to the Department, using the Twitter handle “@LaLegale” 4. There were more than 9,000 such tweets, at least one of which was broadcast during the respondent's working hours 5, and many of which were variously critical of the Department, other employees of the Department, departmental policies and administration, Government and Opposition immigration policies, and Government and Opposition members of Parliament 6.

The Tribunal found 7 that “[s]ome of the tweets are reasonably characterised as intemperate, even vituperative, in mounting personal attacks on government and opposition figures”

3 On 7 March 2012, the Workplace Relations and Conduct Section of the Department (“the WRCS”) received a complaint from one of its employees, which was copied to the National Communications Manager, alleging that the respondent was inappropriately using social media in contravention of the APS Code of Conduct 8. After reviewing the complaint, the Director, WRCS determined that the complaint did not contain sufficient material to proceed with a formal APS Code of Conduct investigation, and advised the complainant of his determination 9.

4 On 9 May 2012, the WRCS received a second, more detailed complaint regarding the respondent's conduct 10. On the basis of that complaint, on or around 15 May 2012, the Director determined to initiate an investigation into whether the respondent's conduct gave rise to possible breaches of the APS Code of Conduct, and, on 23 July 2012, the WRCS informed the respondent of the Director's determination 11.

5 Between 15 May 2012 and 13 September 2012, the Assistant Director, WRCS conducted the investigation into whether the respondent's conduct gave rise to possible breaches of the APS Code of Conduct and prepared an investigation report dated 13 September 2012 12. On 20 September 2012, the Director, Workforce Design and Strategy, being an authorised delegate of the Secretary of the Department, sent a letter to the respondent setting out a proposed determination of breach of the APS Code of Conduct and inviting the respondent to provide a response 13. On the same day, the respondent sent an email to the

WRCS responding to the proposed determination of breach 14. On 15 October 2012, the delegate determined that the respondent had breached the APS Code of Conduct and proposed a sanction of termination of employment 15. The respondent was provided with the determination and given seven days to provide a response 16

6 On 19 October 2012, the Director, WRCS and the delegate met the respondent and her union representative at the respondent's request 17. During that meeting, the respondent admitted to having broadcast tweets under the handle @LaLegale in which she criticised Government immigration policy and her direct departmental supervisor, and, on the same day, the respondent sent an email to the complainant offering an “unreserved” apology 18. Thereafter, she sought and was granted a number of extensions of time in which to provide a response to the proposed determination of sanction 19. The last extension granted was until 2 November 2012 20. On 1 November 2012, the respondent instituted proceedings in the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) seeking interim and final injunctions to restrain the Department from proceeding with the proposed sanction of termination of her employment 21.

7 On 2 November 2012, the respondent submitted a response to the proposed sanction of termination of employment 22. On the same day, her representative, the Media, Entertainment and Arts Alliance, also submitted a written response to the proposed determination of sanction, and, on 9 November

2012, submitted a further response 23. On 11 November 2012, the respondent submitted another response dated 9 November 2012 24. On 17 November 2012, she sent an email to the Director, WRCS withdrawing her admission and apology and alleging that the process underlying the APS Code of Conduct investigation and termination decision was flawed 25

8 On 9 August 2013, the Federal Circuit Court rejected the respondent's claim for interim injunction 26. On 15 August 2013, the Director, WRCS wrote to the respondent setting out the steps which the Department proposed to take to finalise the process relating to the respondent's breaches of the APS Code of Conduct 27. The letter stated that the delegate would consider all of the information provided by and on behalf of the respondent in response to the 15 October 2012 determination, that the delegate would then write to the respondent advising her of the proposed sanction (if any) and inviting her to make any further submissions she may wish to make concerning it, and that the delegate would thereafter complete the review process and make a final determination as to the...