Posted on August 8, 2019 by Stuart Simington and Lindsay Taylor
Freedom of political communication and the Banerji decision – Implications for the validity of conduct standards in State and local government
Legislation and codes of conduct apply to both State and local government employees in NSW. We are frequently asked whether the restrictions on conduct contained in such codes may infringe upon the implied right to freedom of political communication. The unanimous decision of the High Court in Comcare v Banerji  HCA 23 suggests strongly that reasonable restrictions on the conduct of government staff (at both State and local government level) are unlikely to be invalid, at least where those restrictions are necessary and adapted to achieve apolitical and professional administration.
In a series of cases, the High Court has recognised that the Commonwealth Constitution contains an implied right to freedom of political communication. The implied right is not a personal right to free speech like that in the US Constitution. Rather, it operates primarily as a restraint on the exercise of executive and legislative power where that exercise would burden the implied freedom to an unwarranted extent. The case law suggests that the implied right affects the exercise of power at both Commonwealth and State or Territory levels. This includes the legislation that constitutes local government, being a creature of State legislation, which is therefore assumed to be capable of infringing the implied right in an appropriate case.
Originating from the decision in Lange v Australian Broadcasting Corporation  HCA 25, the test for breach was further refined in a series of case including McCloy v NSW  HCA 34 (see our earlier blog here) as follows.
- Does the law effectively burden the freedom of communication about government or political matters either in its terms, operation of effect? If so, the law is potentially in breach of the implied right.
- But is the purpose of the law and the means adopted to achieve that purpose compatible with the maintenance of constitutionally prescribed system of representative government?
- And is the law reasonably appropriate and adapted to advance that legitimate object analysed in three respects?
- First, the suitability requirement requires that the law must have a rational connection to the purpose.
- Secondly, the necessity requirement considers whether there are any obvious and compelling alternative, reasonably practicable means of achieving the relevant purpose in a way which has a less restrictive effect on the freedom.
- Thirdly, the adequacy on balance requirement considers whether there is a balance between the positive effect of realising the law’s proper purpose with the negative effect of the limits on constitutional rights or freedom.
In the subject case, Ms Banerji, was dismissed from her employment in the Australian Public Service (APS) under s15 of the Public Service Act 1999 on grounds that she had breached the APS Code of Conduct.
Ms Banerji had made more than 9000 anonymous tweets on matters relevant to the Department of Immigration and Citizenship, using the Twitter handle “@LaLegale”.
Many of the tweets were critical of the Department, other employees of the Department, departmental policies and administration, Government and Opposition immigration policies, or Government and Opposition members of Parliament. Virtually all of them were made outside of working hours.
Following the termination, Mrs Banerji sought compensation under the Safety, Rehabilitation and Compensation Act 1988 for the mental ‘injury’ she claimed had arisen from her termination.
However, under that Act, no ‘injury‘ could arise from aggravation arising from ‘reasonable administrative action taken in a reasonable manner in respect of her employment‘.
Therefore the case concerned whether her termination was the result of reasonable administrative action. In essence, Ms Banerji argued that her injury could not have been caused by reasonable administrative action because insofar as the conduct standards that she breached applied to the “anonymous” communications, the standards imposed an unjustified burden on the implied freedom of political communication and were for that reason invalid.
The Public Service Act imposed a number of relevant conduct requirements on employees as follows.
- An APS employee must behave honestly and with integrity in the course of APS employment.
- An APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment.
- 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 Act then made provision for the determination of the sanction for any breach of those requirements, ranging from reprimand as the least serious through to termination.
There were Departmental guidelines which explained to employees that”[p]ublic comment, in its broadest sense, includes comment made on political or social issues at public speaking engagements, during radio or television interviews, [and] on the internet“, and cautioned that it was inappropriate for a Department employee to make unofficial public comment that is, or is perceived as:
- compromising the employee’s ability to fulfil his or her duties professionally in an unbiased manner (particularly where comment is made about Department policy and programmes);
- so harsh or extreme in its criticism of the Government, a member of Parliament or other political party and their respective policies that it calls into question the employee’s ability to work professionally, efficiently or impartially;
- so strongly critical of departmental administration that it could disrupt the workplace; or unreasonably or harshly critical of departmental stakeholders, their clients or staff.
Similar, more extensive guidance was provided in the APS Guidelines which amongst other things indicated that, “[a]s 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“.
The High Court accepted that the conduct standards met the first limb of the test, because they did limit political communication and therefore imposed an effective burden on the implied freedom of political communication.
Nevertheless the standards had a legitimate purpose and were reasonably appropriate and adapted to advance a legitimate object.
The Court held that the maintenance and protection of an apolitical and professional public service is a significant purpose consistent with the system of representative and responsible government.
The purpose of the conduct standards were compatible with this because they endeavoured to ensure that employees of the APS at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS.
The standards were also appropriate and adapted or proportionate to the achievement of the legitimate purpose because they were suitable, necessary and adequate in balance within the meaning of the third limb of the test.
The Court accepted that it is highly desirable if not essential to the proper functioning of the system of representative and responsible government that the government have confidence in the ability of public service to provide high quality, impartial, professional advice, and that the public service will faithfully and professionally implement accepted government policy, irrespective of an employee’s individual personal political beliefs or predilections. Therefore the standards were suitable because they were a rational means of realising that objective.
The standards would not lack necessity unless there was an obvious, compelling, equally practicable and available alternative that would result in a significantly lesser burden on the implied freedom. The Court did not accept the argument that anonymous communications should be excluded by the implied right from the scope of the standards because this would not adequately protect the APS. That was, not least, because anonymous communications could still be a significant potential source of damage to the integrity and good reputation of the APS. Anonymous communications were not necessarily more deserving of protection by the implied freedom than those communications for which the speaker acknowledged responsibility.
Adequacy and balance
Finally, the standards were adequate in balance unless the benefit sought to be achieved by them was manifestly outweighed by their adverse effect on the implied freedom. The Court found that the applicable procedures for the assessment of breach and the options available to the decision maker as to penalty (depending on the circumstances and severity of a breach) together with the opportunities for review by the affected employee, presented as a plainly reasoned and focussed response to the need to uphold the APS Values and the integrity and good reputation of the APS. The standards trespassed no further upon the implied freedom than was reasonably justified.
Our preliminary view is that this case provides a strong basis to argue that there is power to impose broad conduct standards on the staff of State and local government where those standards are for and appropriately adapted to ensuring the integrity of and the professional administration of local government. Although this case concerned the Commonwealth public service, the Court has previously recognised that there is a complex interrelationship between levels of government [and] issues common to State and federal government and the levels at which political parties operate [that] necessitate that a wide view be taken of the operation of the freedom of political communication.
Importantly, however, we do not think the case addresses the extent to which such conduct standards may or may not be lawful in so far as they apply to elected members.