Commonwealth Government worker's employment terminated after posting anonymous tweets

On 7 August 2019, the High Court delivered judgment in Comcare v Banerji, allowing the appeal by Comcare against a finding by the Administrative Appeals Tribunal that provisions of the Public Service Act 1999 (Cth) imposed an unjustified burden on the implied freedom of political communication.

Ms Banerji was employed within the Ombudsman and Human Rights and Equal Opportunity Commission section of what became the Department of Immigration and Citizenship. Ms Banerji anonymously posted tweets on Twitter criticising the Department. The posts were discovered and ultimately her employment was terminated on the basis that she had breached the Australian Public Service Code of Conduct. Ms Banerji claimed compensation for injuries caused by the termination.

Reflecting an approach to statutory construction in the UK, five judges of the High Court first construed the power to discipline public servants as incorporating a requirement that the power be exercised proportionately. Their Honours specifically linked the requirement of proportionality to the requirement to act reasonably when applying statutory powers.

The High Court then went on to consider whether the statutory power impermissibly infringed the implied freedom of political communication. The Court was critical of the AAT’s formulation of the implied freedom as a personal right rather than as a structural limit on legislative power.

The Court accepted that the provisions of the Public Service Act imposed a burden on the implied freedom, but found that the Act has a legitimate purpose consistent with the system of representative and responsible government. In particular, the Court found that the Act was directed to the maintenance and protection of an apolitical public service that is skilled and efficient in serving the national interest. The Court unanimously held that the legislation was reasonably appropriate and adapted to achieve that purpose. Five judges applied a uniform approach to structured proportionality to arrive at that result, suggesting that the test is now reasonably settled.