Comcare v Banerji is a decision of the High Court of Australia. It was an appeal brought by

Comcare Comcare is a statutory authority of the Australian Federal Government established under the ''Safety, Rehabilitation and Compensation Act'' 1988public servant Michaela Banerji, seeking to overturn a decision of the

Administrative Appeals Tribunal The Administrative Appeals Tribunal (AAT) is an Australian tribunal that conducts independent merits review of administrative decisions made under Commonwealth laws of the Australian Government. The AAT review decisions made by Australian Gover ...

. The tribunal had declared that termination of her employment was not a reasonable administrative action; once regard was had to the implied freedom of political communication.. The court ruled unanimously that provisions of the ''Public Service Act 1999'' (Cth), regarding the termination of a public servant's employment, did not contravene the implied freedom of political communication. It further ruled that the decision to terminate her employment based on her use of an anonymous Twitter account was not otherwise unlawful.

Factual Background

Banerji was a public servant at the

Australian Human Rights Commission The Australian Human Rights Commission is the national human rights institution of Australia, established in 1986 as the Human Rights and Equal Opportunity Commission (HREOC) and renamed in 2008. It is a statutory body funded by, but opera ...

, which later became part of the then-named

Department of Immigration and Citizenship The Department of Immigration and Citizenship (DIAC) was an Australian government department that existed between January 2007 and September 2013, that was preceded by the Department of Immigration and Multicultural Affairs and was s ...

(DIC). In 2012, she began to use an anonymous

Twitter Twitter is an online social media and social networking service owned and operated by American company Twitter, Inc., on which users post and interact with 280-character-long messages known as "tweets". Registered users can post, like, and ...

account to criticize the DIC, its employees and policies, as well as the immigration policies of both major parties. After a series of investigations the identity of the Twitter user was discovered and in October 2012 a

delegate Delegate or delegates may refer to: * Delegate, New South Wales, a town in Australia * Delegate (CLI), a computer programming technique * Delegate (American politics), a representative in any of various political organizations * Delegate (Unit ...

of the departmental secretary determined that Banerji had breached the APS Code of Conduct and recommended the sanction of termination of employment. After Banerji was terminated, she made a claim for compensation for a workplace injury; that being depression and anxiety caused by the termination. The Department rejected this claim on the basis that the termination was a reasonable administrative action (an exclusion provided by s5A(1) of the ''Safety, Rehabilitation and Compensation Act 1988'' (Cth). The respondent applied for review of the decision at the

, arguing that the exclusion did not apply because the provisions used to terminate her employment within the ''Public Service Act'' were in breach of the implied freedom of political communication, and thus

unconstitutional Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...

. Additionally, Banerji argued that the implied freedom was a mandatory consideration in the exercise of delegate's discretion to terminate her employment under s15 of the Act; and that their failure to consider it meant the decision was in

jurisdictional error Jurisdictional error is a concept in administrative law, particularly in the UK and Australia. Jurisdiction is the "authority to decide", and a jurisdictional error occurs when the extent of that authority is misconceived. Decisions affected by ju ...

Decision

The High Court unanimously allowed the appeal, rejecting the respondent's arguments. By majority, Kiefel CJ, Bell, Keane and Nettle JJ rejected Banerji's argument that the impugned provisions could not extent to 'anonymous' communications. They then held that the provisions did not impose an unjustified burden on the implied freedom, and that the termination of the respondent's employment was not unlawful. Finally, the court held that the implied freedom was not a mandatory consideration for the decision maker, as the law was both constitutional, and it already contained a requirement that the decision maker act reasonably. However, the court cautioned that the implied freedom may still be a relevant mandatory consideration, in the exercise of different discretion under other legislation. The court commented on Banerji's submissions to say that:

"the respondent's implied freedom argument amounts in effect to saying that, despite the fact that her conduct in broadcasting the "anonymous" tweets was conduct which failed to uphold the APS Values and the integrity and good reputation of the APS, Parliament was precluded from proscribing the conduct because its proscription imposed an unjustified burden on the implied freedom of political communication. To say the least, that is a remarkable proposition." (per Kiefel CJ, Bell, Keane, Nettle JJ)

Application of Freedom of Political Communication proportionality test

In making their finding that the provisions did not create an unjustified burden on the implied freedom, the majority applied the

legal test In law, a test is a commonly applied method of evaluation used to resolve matters of jurisprudence. In the context of a trial, a hearing, discovery, or other kinds of legal proceedings, the resolution of certain questions of fact or law may hinge ...

from ''Lange v ABC'',. as it was stated in ''

Clubb v Edwards Clubb v Edwards; Preston v Avery is a decision of the High Court of Australia.. . It was a combined hearing of two appeals, raised from the Magistrates Court of Victoria and Tasmania respectively. The appellants, Kathleen Clubb and John Preston; ...

'',. . earlier in 2019. This involved an inquiry as to; the law's effective burden on the freedom, the laws purpose, before an evaluation as to whether the law complied with a three-stage freedom of political communication proportionality test. The court's findings were as follows: #Did the law impose an effective burden on the implied freedom of political communication?
The court found that 'a law which prohibits or limits political communication to any extent will generally be found to impose an effective burden on the implied freedom of political communication'.
The Commonwealth conceded that the sections of the ''Public Service Act'' in question did impose an effective burden. #Did the laws have a legitimate purpose?
The court found that the main objects of the act, which included the establishment of 'an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public', among other purposes; is a 'significant purpose consistent with the representative and responsible government mandated by the Constitution'. Therefore, the law passed this stage of the test. #Were the laws appropriate and adapted or proportionate to the achievement of a legitimate purpose consistent with the system of representative and responsible government?
The court restated the ''Clubb v Edwards'' formulation of the 'appropriate and adapted' stage of the test, as consisting of analysis as to whether the law is 'suitable, necessary, and adequate in its balance'. The evaluation of the statute under the three-stage proportionality test was performed by the majority as follows: ##Suitable
The court explained that a law is 'suitable' if it exhibits a 'rational connection to its purpose', and that 'a law exhibits such a connection' if it provides for a means of realizing that purpose. The majority found that:

'it is most desirable if not essential that management and staffing decisions within the APS be capable of being made on a basis that is independent of the party political system, free from political bias, and uninfluenced by individual employees' political beliefs. The requirement imposed on employees of the APS by ss 10(1) and 13(11) of the ''Public Service Act'', at all times to behave in a way that upholds the APS Values and the integrity and good reputation of the APS represents a rational means of realizing those objectives and thus of maintaining and protecting an apolitical and professional public service. The impugned provisions are suitable in the necessary sense.'

It was found therefore that the relevant sections of the ''Public Service Act'' passed the test of suitability. ##Necessity
The court explained that where a law has a 'significant purpose consistent with the system of representative and responsible government', it will not usually be regarded as lacking in necessity unless there is an 'obvious and compelling alternative' which is 'equally practicable and available and would result in a significantly lesser burden on the implied freedom'. The court interpreted Banerji's arguments that the laws were an unjustified burden, by proscribing anonymous communications; to be a submission that an obvious and compelling alternative would be to exclude anonymous communications from the scope of the law's application. The court rejected that implicit submission from Banerji, and expressed that Banerji's assumption that anonymous communications were more deserving of protection than open communications; 'was not necessarily sound'. The law was therefore found to have passed the Necessity stage of the test. ##Adequacy in balance
Finally, the court explained that a law 'is regarded as adequate in its balance, unless the benefit sought to be achieved by the law is manifestly outweighed by its adverse effect on the implied freedom'. The court found that the penalties that could be imposed under Section 15 of the Public Service Act, (including the sanction of termination of employment) did 'not suggest that the impugned provisions are not adequate in their balance.' The impugned provisions were found to have presented as 'a plainly reasoned and focused response to the need (of enforcing APS values)' and 'trespassed no further upon the implied freedom than is reasonably justified'.
As the law was found to have survived each stage of the legal test, Banerji's arguments that the law was unconstitutional were rejected by the majority.

Aftermath

The decision was criticized by the

Community and Public Sector Union CPSU, the Community and Public Sector Union (more commonly known as the CPSU) is a national trade union in Australia. The union came into existence on 1 July 1994 with the amalgamation of the Public Sector, Professional, Scientific, Research, ...

national secretary Nadine Flood, describing the case as "one of the most important cases on the implied freedom of political communication of recent years". She said "People working in Commonwealth agencies should be allowed normal rights as citizens, rather than facing Orwellian censorship because of where they work". Kieran Pender of

The Canberra Times ''The Canberra Times'' is a daily newspaper in Canberra, Australia, which is published by Australian Community Media. It was founded in 1926, and has changed ownership and format several times. History ''The Canberra Times'' was launched in ...

described the decision as 'no surprise', writing that;

"Even in the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territori ...
, that bastion of free speech with its robust
First Amendment First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and reco ...
, the ability of government employees to engage in political debate is limited. American judge Oliver Wendell Holmes once quipped: The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman''.' That just about sums up the High Court's judgment in ''Comcare v Banerji''."

Significance

The ''Banerji'' decision was the first time a High Court majority explicitly included the word 'proportionate' as part of the ''Lange'' test. That development is relevant to academic and judicial debates about the role of proportionality testing in

Australian constitutional law Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed. Background Constitution ...

. The concept of proportionality testing is borrowed from German jurisprudence (a civil jurisdiction). The case along with ''

Brown v Tasmania ''Brown v Tasmania'',. was a significant Australian court case, decided in the High Court of Australia on 18 October 2017. The case was an important decision about the implied freedom of political communication in the Australian Constitution in ...

'',. and ''Clubb v Edwards'', also collectively marks a point of stability for Australian

free speech Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recog ...

jurisprudence. These cases have only altered the freedom of political communication test in minor ways since reformulation in '' McCloy v NSW''.. It is also an important case for Australia's

public service A public service is any service intended to address specific needs pertaining to the aggregate members of a community. Public services are available to people within a government jurisdiction as provided directly through public sector agencies ...

. It is authority for the Commonwealth being allowed to sanction the political speech of public servants; without needing even to regard the FoPC doctrine when determining sanctions for such conduct.

References