By Mark Cox, Director and Madeleine Brown, Associate
High Court rules in favour of employer in social media freedom of political communication case
Comcare v Banerji  HCA 23
A public servant sacked for publishing 1000’s of anonymous tweets criticising her employer has failed in her bid to challenge her dismissal as a breach of the implied freedom of political communication.
Ms Banerji worked as a public affairs officer for the Department of Immigration and Citizenship (Department) from 2006 until her dismissal in 2013.
In 2011, Ms Banerji began anonymously tweeting under the handle ‘@LaLegale’. LaLegale’s tweets were critical of the Department, members of Federal Parliament, the government and the opposition and their respective policies in relation to immigration.
In September 2013, the Department terminated Ms Banerji’s employment for breaches of her obligations under the Public Service Act 1999 (Cth) (PS Act) and the Australian Public Service Guidelines (APS Guidelines).
Under the PS Act and the APS Guidelines Ms Banerji was required to:
- behave in a way that upholds the Australian public service (APS)’s values, including that the APS is apolitical and impartial; and
- not make public comment that is, or is perceived as:
- compromising her ability to fulfil her duties professionally in an unbiased manner; and
- harsh or extreme in its criticism of the government, a member of Parliament, a political party or a political party’s policies.
Ms Banerji claimed that the requirements of the PS Act and the APS Guidelines were unconstitutional and invalid because they infringed on the implied freedom of political communication.
The High Court unanimously held that the requirements of the PS Act and the APS Guidelines were valid as they were reasonably necessary and adequately balanced to achieve the legitimate purpose of ensuring that the public service remains apolitical and impartial.
In addition to confirming the broad restrictions on public servants’ political expression, the High Court’s decision has broader implications for employers and employees in both the public and private sectors.
Anonymity is no protection to employees
As part of her claim, Ms Banerji argued that the requirements of the PS Act and the APS Guidelines did not apply to anonymous posts.
The High Court rejected Ms Banerji’s argument, holding that even anonymous posts risk the author’s identity being revealed, which is exactly what happened in this case. The High Court found that where the author’s identity is later discovered, the fact that the posts were made by an employee of the particular employer is bound to damage the integrity and good reputation of that employer.
In any event, the High Court confirmed that posts that are overly critical of the employer or its policies damage the good reputation of the employer even if the author remains anonymous.
No personal right to “free speech” in Australia
The High Court confirmed that unlike in the United States there is no personal right to free speech in Australia.
In Australia, there are limits on the legislative power of the Parliament to make laws that place an unjustified burden on the implied freedom of political communication. A restriction on legislative power is different to a personal right.
The distinction is important. As stated by the majority of the High Court in this case, this means that:
even if a law significantly restricts the ability of an individual or a group of persons to engage in political communication, the law will not infringe the implied freedom of political communication unless it has a material unjustified effect on political communication as a whole
In practical terms, this confirms that while employees are entitled to their opinions, they need to consider carefully their contractual and or statutory obligations to their employer before posting online.
There are protections regarding political communications in the employment context, most notably section 351 of the Fair Work Act 2009 (Cth), which prohibits an employer taking adverse action against a person because of their political opinion. This particular provision is relatively untested, though this may change if the Israel Folau case proceeds to a hearing.
In contrast to the outcome in Banerji, the Fair Work Commission upheld the unfair dismissal claim in Ms Creina Murkitt v Staysafe Security T/A Alarmnet Monitoring  FWC 5622 (16 August 2019). There the employee had posted a vent against new owners of her employer, saying they don’t care for their clients or employees, which Commissioner Platt found was a valid reason for the termination, but held the termination was disproportionate and harsh because the post was a single event, and because of her 15 years’ service, lack of past performance problems and her medical condition. However, Commissioner Platt declined to order any compensation holding that if she wasn’t dismissed she would not have continued in her employment anyway, and because she got workers compensation payments.
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