Banerji and Comcare (Compensation) [2018] AATA 892 (16 April 2018)

Last Updated: 17 April 2018

Banerji and Comcare (Compensation) [2018] AATA 892 (16 April 2018)





Division: General Division

File Number(s): 2014/5055

Re: Michaela Banerji

APPLICANT

And Comcare

RESPONDENT

DECISION

Tribunal: Deputy President Gary Humphries



Dr B Hughson, Member

Date: 16 April 2018

Place: Canberra





The Tribunal sets aside the reviewable decision of 1 August 2014 and instead finds that on 13 September 2013 Ms Banerji suffered an adjustment disorder characterised by depression and anxiety, being an injury pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988.

........................................................................



Deputy President Gary Humphries

Catchwords

COMPENSATION – adjustment disorder characterised by depression and anxiety – mental injury significantly contributed to by Ms Banerji’s employment – whether termination of Ms Banerji’s employment for breaches of the APS Code of Conduct was reasonable administrative action taken in a reasonable manner – reviewable decision set aside.

CONSTITUTIONAL LAW – implied freedom of political communication – whether the APS Code of Conduct burdens this implied freedom – whether the Code is reasonably appropriate and adapted to serve a legitimate end

PUBLIC SERVICE, PROFESSIONS AND TRADE – duty of fidelity and loyalty – whether the implied freedom of public servants is restricted in certain circumstances – preserving the capacity of the APS to deliver effective and professional services to the Australian government

Legislation

Acts Interpretation Act 1903 s 15A

Public Service Act 1999 ss 10, 13, 15, 29

Safety, Rehabilitation and Compensation Act 1988 ss 5A, 14

Cases

A-G (SA) v Corporation of the City of Adelaide [2013] HCA 3

Bailey v Conole [1931] WALawRp 3; (1931) 34 WALR 18

Banerji v Martin Bowles, Acting Secretary, Department of Immigration and Citizenship [2013] FCCA 1052

Bennett v President, Human Rights and Equal Opportunity Commission [2003] FCA 1433; (2003) 134 FCR 334

Brown v Tasmania [2017] HCA 43

Central Market Stallholders’ Association Inc v City of Adelaide (1985) 57 LGRA 264

Coleman v Power [2004] HCA 39; (2004) 220 CLR 1

Drake v Minister for Immigration and Ethnic Affairs (1999) 46 FLR 409

FCT v Day [2008] HCA 53; (2008) 236 CLR 163

Fraser v Public Service Staff Relations Board [1985] 2 SCR 455

Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370

Haydon v Canada [2001] 2 FC 82

Haydon v Canada [2004] FC 749

Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520

McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178

Olsen v City of Camberwell [1926] VicLawRp 9; [1926] VLR 58

Osborne v Canada [1991] 2 SCR 69

Rice v Daire (1982) 30 SASR 560

Starr v Department of Human Services [2016] FWC 1460

Wotton v Queensland [2012] HCA 2

Secondary Materials

Christopher Erskine, ‘The Bennett Decision Explained: The Sky is Not Falling!’ (Paper presented at an AIAL seminar, Canberra, 27 April 2005)

Department of Immigration and Citizenship, Code of Conduct Guidelines

Australian Public Service Commission, Circular 2012/1: Revisions to the Commission’s guidance on making public comment and participating online (social media) (at 10 January 2012)

Department of Immigration and Citizenship, ‘What is Public Comment?’ Workplace Relations and Conduct Section Fact Sheet, Department of Immigration and Citizenship

REASONS FOR DECISION





Deputy President Gary Humphries



Dr B Hughson, Member







16 April 2018

Ms Michaela Banerji was an employee of the (then) Department of Immigration and Citizenship (the Department) when, in September 2013, her employment was terminated on the basis that she had breached the Australian Public Service (APS) Code of Conduct (the Code). The conduct relied upon by the Department as the basis for the breach was Ms Banerji’s use of a Twitter account to post tweets which were highly critical of the then government, the then minister, certain policies of the Department and the Department’s Communications Manager, Mr Sandi Logan. On 18 October 2013 Ms Banerji lodged a claim for workers compensation for post-traumatic stress disorder under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). A delegate of Comcare refused this claim on 24 February 2014, and, following reconsideration, that decision was affirmed on 1 August 2014. Ms Banerji lodged an application for merits review by the Tribunal on 30 September 2014.

STATEMENT OF AGREED FACTS AND ISSUES

There have been many interlocutory steps in the progress of Ms Banerji’s application before the Tribunal – including proceedings before the Federal Circuit Court, the Federal Court and the High Court – which have had the effect of delaying its hearing. A hearing was eventually set down before the Tribunal in November 2017, but shortly before the hearing the parties reached agreement on a statement of facts and issues, allowing the matter to be heard (except in one respect) on the papers. That statement is reproduced here (cross-referencing is omitted):

Decision under review

The decision under review is a decision by a Comcare Review Officer (RO) dated 1 August 2014, which affirmed the determination dated 24 February 2014, denying the applicant’s claim for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for a psychological condition (the claimed condition).

Agreed Facts

The parties agree that the following statement and the annexed documents constitute the facts and evidence on which the Tribunal will determine the remaining issue in this proceeding.

Background

On 10 April 2006, the applicant was offered and accepted employment as an ongoing APS 6 employee within the Ombudsman and HREOC section of the Department of Immigration and Border Protection (DIBP). The date of commencement to the ongoing position was agreed to be 29 May 2006. The applicant commenced her ongoing role on that date.

Current claim for compensation

On 18 October 2013, the applicant submitted a further claim for compensation under s 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act) for a psychological condition (‘post-traumatic stress disorder’) arising from events leading to and including the termination of her employment for a breach of the Public Service Code of Conduct. The date of injury was given as 13 September 2013. This was the date on which the applicant was advised that her employment was terminated for misconduct. The effective date of the termination was 27 September 2013. As a consequence of the termination, the applicant suffered a ‘disease’, being an ailment that was contributed to, to a significant degree, by the applicant’s employment with the Commonwealth within the meaning of s 5B(1) of the Act. The date of onset of the disease was 13 September 2013 being the first day that the disease resulted in an impairment and incapacity for work. The correct diagnosis of the ailment is ‘an adjustment disorder characterised by depression and anxiety’ being an aggravation of an underlying psychological condition. The ailment was suffered as a result of the termination of the applicant’s employment with the Commonwealth. The applicant would not have suffered the ailment if the termination of her employment had not occurred. The termination of the applicant’s employment was administrative action taken in respect of the applicant’s employment. The parties agree that the termination of the applicant’s employment was reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment unless the applicant can establish that the termination of her employment with the Commonwealth falls outside the exclusion in s 5A(1) of the Act, having regard to the implied freedom of political communication.

The termination decision

Prior to 7 March 2012, Ms Banerji tweeted using the twitter handle Lalegale. The identity of Lalegale was not at that time publicly known. LaLegale commented on matters relevant to the Department of Immigration and Citizenship portfolio [now known as the Department of Home Affairs] but did not disclose confidential information obtained in the course of her employment. On 7 March 2012, the Workplace Relations and Conduct Section received a complaint from an employee of the Department, Ms Mardi Stewart, Director Internal and Strategic Communications copied to Mr Sandi Logan, National Communications Manager. The complaint alleged that the Applicant was inappropriately using social media in contravention of the APS Code of Conduct. After reviewing the 7 March 2012 complaint, Geofrey McKinnon, Director, Workplace Relations and Conduct Section, decided that the complaint made by Mr Logan did not contain sufficient material to proceed with a formal APS Code of Conduct investigation in relation to the Applicant's alleged conduct. Mr Logan was advised of this decision orally. On 9 May 2012, the Workplace Relations and Conduct Section received a second, more detailed complaint from Mr Logan in relation to the Applicant's conduct. On the basis of the information contained in the 9 May 2012 complaint, on or around 15 May 2012, Mr McKinnon decided to initiate an investigation in relation to whether the Applicant's alleged conduct gave rise to possible breaches of the APS Code of Conduct. On 23 July 2012, the Workplace Relations and Conduct Section of DIBP informed the Applicant of the decision to initiate an investigation in relation to whether the Applicant's alleged conduct gave rise to possible breaches of the APS Code of Conduct. Between 15 May 2012 and 13 September 2012, Ms Lidija Hary, Assistant Director, Workplace Relations and Conduct Section conducted an investigation into whether the Applicant's alleged conduct gave rise to possible breaches of the APS Code of Conduct. Ms Hary prepared an investigation report dated 13 September 2012. On 20 September 2012, Robyn White, Director, Workforce Design and Strategy and authorised delegate sent a letter to the Applicant setting out a proposed determination of breach of the APS Code of Conduct. The letter invited the Applicant to provide a response to the proposed determination of breach. On 20 September 2012, the Applicant sent an email to the Workplace Relations and Conduct Section providing a response to the proposed determination of breach. On 15 October 2012, Ms White provided a determination of breach to the Applicant. She determined that the Applicant had breached the APS Code of Conduct, and proposed a sanction of termination of employment. The Applicant was provided with 7 days to provide a response to the proposed sanction of termination of employment. On 19 October 2012, Ms White and Mr McKinnon held a meeting with the Applicant (and her union representative) at the Applicant’s request. An accurate summary of that meeting is included in the letter of Ms White dated 26 August 2013. Ms Banerji admitted that she had tweeted under the name @LaLegale under which she criticised government immigration policy and her direct supervisor. On 19 October 2012, the Applicant sent an email to Mr Logan offering an ‘unreserved’ apology. The Applicant requested and was granted a number of extensions of time to provide a response to the proposed determination of sanction, including on 2 November 2012. On 1 November 2012, the applicant sought an injunction in the Federal Magistrates Court of Australia to prevent the Department from proceeding with the proposed sanction of termination of employment On 2 November 2012, the Applicant submitted a response in respect of the proposed sanction of termination of employment. On 2 November 2012, the Applicant's representative, the Media, Entertainment and Arts Alliance submitted a written response to the proposed determination of sanction. On 9 November 2012, the Media, Entertainment and Arts Alliance submitted a further response to be considered. On 11 November 2012, the Applicant submitted a further response dated 9 November 2012. On 17 November 2012, the Applicant withdrew the confession and apology she gave on 19 October 2012 via an email to Mr McKinnon because she alleged that the investigative process for the Code of Conduct investigation and termination decision was flawed. The decision of the Federal Circuit Court in the matter of Banerji v Martin Bowles, Acting Secretary, Department of Immigration and Citizenship [2013] FCCA 1052, dismissed the injunction application on 9 August 2013. On 15 August 2013, Mr McKinnon wrote to the applicant setting out the steps the Department proposed to take to finalise the process relating to the applicant’s breaches of the APS Code of Conduct given the interim injunction application had been dismissed. The letter noted that the Department proposed to undertake the following process to finalise the sanction decision, namely: 32.1. Ms White would consider all of the information provided to her by the applicant in response to the 15 October 2012 decision;

32.2. Ms White would then write to the applicant, inviting her to make any further submissions regarding the sanction (if any) to be imposed, and provide her with a period of 7 days in which to respond, in addition to the opportunities that had already been provided to be heard; and

32.3. Ms White would then complete the review process and make a determination under section 15(3) of the Public Service Act 1999 to decide what sanction (if any) would be imposed. The letter of 15 August 2013, also noted that any sanction imposed would not be implemented until 14 days after Ms White has made her determination about any sanction that might apply. On 26 August 2013, Ms White provided the applicant with a further opportunity to respond to the proposed sanction of termination in line with the process set out in the letter of 15 August 2013. On 30 August 2013, the Applicant provided a response to Ms White in relation to the proposed sanction of termination. On 12 September 2013, Ms White wrote to the applicant setting out her final decision to impose a sanction of termination of employment under s 15(1)(a) of the Public Service Act 1999. On 13 September 2013, Mr McKinnon wrote to the applicant and provided her a notice of termination of employment under s 29(1) of the Public Service Act 1999. Mr McKinnon was acting at that time as the Assistant Secretary, People Services and Systems Branch and held a delegation to exercise the power to make decisions under that section. In making the decision to issue the notice to terminate Mr McKinnon took into account the terms of s 29, Ms White’s decisions that the applicant had breached the APS Code of Conduct and the final sanction of termination of employment. He notified the applicant that the termination decision would take effect from close of business on 27 September 2013. On 28 March 2014, the Applicant entered into a Deed of Agreement with the Commonwealth of Australia, represented by the Department, agreeing to settle proceedings in the Federal Court of Australia in matter no NSD 21 of 2014.

Agreed Issue

With respect to the applicant’s claimed condition, the only issue before the Administrative Appeals Tribunal is: 38.1. whether or not the termination of the applicant’s employment with the Commonwealth falls outside the exclusion in s 5A(1) of the Act, having regard to the implied freedom of political communication.

PRINCIPAL ISSUE TO BE DETERMINED BY THE TRIBUNAL

A bundle of documents was filed jointly by the parties. Based on this bundle, the parties’ submissions and a perusal of the other documents filed in these proceedings, the Tribunal is satisfied as to the factual matters which are set out in the parties’ statement of agreed facts and issues. In particular, the Tribunal is satisfied that the termination of Ms Banerji’s employment was administrative action taken in respect of her employment, and was administrative action which contributed significantly to the onset of her ailment of adjustment disorder characterised by depression and anxiety,[1] an aggravation of an underlying psychological condition from which she suffered. It further finds that she would not have suffered this ailment if the termination of her employment had not occurred. There was conflicting medical opinion filed by the parties; however, the Tribunal is satisfied that there is reasonable evidence on which to find that Ms Banerji suffered from the claimed condition. Having reached a state of satisfaction on those matters the sole task falling to the Tribunal, pursuant to the parties’ agreement, is to determine the remaining issue relevant to the question of whether Ms Banerji has suffered an injury pursuant to s 14 of the Act. Comcare’s contention is that that the termination of her employment was reasonable administrative action taken in a reasonable manner, so that liability for her condition is excluded under the terms of s 5A(1), which provides:

"injury" means:



(a) a disease suffered by an employee; or



(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or



(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;



but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.

Ms Banerji contends that the termination of her employment cannot be characterised as reasonable administrative action carried out in a reasonable manner if it was carried out in breach of the implied freedom of political communication identified by the High Court in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520. The parties lodged submissions addressing the circumstances, if any, in which the implied freedom of political communication might be exercised. Based on those submissions, the Tribunal now finds that the termination trespassed on the implied freedom of political communication, was thus unlawful, and so cannot constitute reasonable administrative action.

BACKGROUND

From approximately January to July 2012 Ms Banerji made a number of tweets under the Twitter handle LaLegale. It appears that some of her followers were journalists and politicians. The tweets frequently imparted strong criticism of the then government, the then immigration Minister, members of the Commonwealth Parliament, government immigration policy and the Department’s communications manager, Mr Logan. Examples of those tweets include:

@ASRC1 Rubbish@ Think of the deaths we are responsible for in Iraq! Think of the refugees we have created by our invasion of Iraq!



@taylor_jessie Think of thousands killed in unjust war in Iraq, of Saddam Hussein murdered without trial, of Gadaffi assassination.



@SandiHLogal Substance: asylum. Process: Rule of Law. Result: onshore processing #nodetention @inhumane @nooffshoreprocessing



@whitegirlinasia Where states fail to offer legal asylum to refugees, that state fails. #itsnotwelfare @SandiHLogan



@Correllio @Juliagillard There’s something in common about the way @JuliaGillard uses words and the way that Craig Thomson uses credit cards



Offshore processing is unlawful...IMHO “@janafavero: Wilkie will not sign @OakeyMP Bill...reignite offshore processing http://tiny.cc/he82aw”



@InjusticeFacts While Bob Carr, our new Minister for FA, sheds crocodile tears for 16 deaths in Afghanistan. #intellectualdishonesty #Auspol



When a nation state permits eighty-six percent of detainees to suffer mental health problems, it #fails. Understanding #itsnotwelfare



@BarackObama Tell us a speech about your conversation with @JuliaGillard in Australia implicating country and people in your war games.



DIAC doesn’t see the steps: 1. Is Oz first place of asylum? 2. Is person security cleared? 3. Is person risk persecution? #getitright



@ScottMorrisonMP @jasonclaremp I would prefer you were reading the international convention on refugees! And understanding it!



Indeed! “@dbvalentine: Watching Julia Gillard & Wayne Swan’s “reading” of budget over coffee was just embarrassing #FAIL #abc730 #Auspol”



@NorthcoteIND @abc730 Neither of the parties get it: What are our obligations under international law? #auspol @senatormilne



Oz does not abide by RC. “@GROGParty: @LaLegale @lyndsayfarlow sorry RC and Protocol, not following???”

Some of these appear to be retweets by LaLegale of criticisms made by other tweeters. We take it that RC is a reference to the 1951 United Nations Convention Relating to the Status of Refugees. An investigation carried out by Ms Lidija Hary of the Workplace Relations and Conduct Section of the Department concluded on 13 September 2012 that Ms Banerji may have breached the APS Code of Conduct. On 15 October 2012 Ms Robyn White, the Departmental Secretary’s delegate, wrote to Ms Banerji in the following terms:

Breach Decision



After extensive and careful consideration of the facts of this matter, including the written statement you provided to me (as emailed to the ‘Values and Conduct’ email address on 20 September 2012), in regard to the allegations and my proposed breach finding of 20 September 2012, I have determined you have breached the Code at subsections 13(1), 13(7) and 13(11) of the Act.



As outlined in my letter to you of 20 September 2012, my reasons for this decision are that by making in appropriate online comments which were harsh and extreme in their criticism of the Government and DIAC administration to over 700 followers, many of whom are from the journalistic and political arena and by not declaring your outside employment you have failed to:

behave with honesty and integrity in the course of your APS employment and in a way that upholds the APS Values and the integrity and good reputation of the APS; and

take reasonable steps to avoid any conflict of interest (real or apparent) in connection with APS employment.[2]

While I note that in your response of 20 September 2012 to the proposed breach decision, you state there is no evidence that the account is yours, I disagree. I am satisfied that, on the balance of probabilities, the evidence provided, although circumstantial, does support the conclusion that the LaLegale twitter account is yours. I also disagree with your remark that the twitter comments are simply statements of international law facts. I find that they are often highly critical of the Government, the Minister, the Immigration portfolio and DIAC’s Communication Manager, Sandi Logan. I also find that your statements are in direct conflict with the department’s Code of Conduct Guidelines which state that:



It is not appropriate for DIAC employees to make unofficial public comment that is, or perceived as:

harsh or extreme in its criticism of the government, a member of parliament or other political party and their respective policies that questions the staff member’s ability to work professionally, efficiently or impartially – such comments do not have to relate to the staff member’s area of work

strong criticism of DIAC administration that could disrupt the workplace (grievance resolution already exists within DIAC and those procedures need to be followed)...

Ms White then determined that the appropriate sanction for breach of the Code of Conduct was the termination of Ms Banerji’s appointment. She went on to make the following comments:

In considering the sanction I have considered the following matters:

That you should have known that your conduct was inappropriate and inconsistent with the department’s APS Values and Code of Conduct. You have been employed by DIAC for approximately six years and as a departmental employee, you have had continual access to the department’s intranet and elearning programs and therefore have had ready access to the Code of Conduct and policy material referred to above.

As a lawyer, it would reasonably be considered that you would be familiar with the relevant legislation, or in deed reasonably expected to understand it.

That you work in the area (National Communications Branch) which is responsible for managing the department’s brand and reputation. In addition, you work in the area responsible for the department’s policy and publications articulating expectations in respect of social networking sites and guidance on their use. This policy clearly states that, even using an alias, you must assume that at some stage it will be known that you are an APS employee.

In your response of 20 September 2012 you indicated that the tweets were simply statements of international law when in fact many of the statements made were making comments about policy regarding immigration detention and processing of refugees, senior government officials, Minsters [sic] and the Prime Minister and many of your followers are from the journalistic and political arena.

...



All of the above indicates to me that you did not behave in a way that upholds the APS Values and the integrity and good reputation of the APS at all times, as required by subsection 13(11) of the Act.

In a letter dated 26 August 2013 Ms White wrote to Ms Banerji offering a further opportunity to make submissions on the proposed sanction. She set out her considerations in that regard: It is clear that your actions were inappropriate and inconsistent with the APS Values and Code of conduct and the Department’s social media guidelines. You worked in the National Communications Branch, which has responsibilities including the management of external communication activities (including media liaison), and policy and publications articulating expectations in respect of social networking sites and guidance on their use. Accordingly, I consider that you should have been aware that the comments you were making in relation to policies and programs administered by the Department were wholly inconsistent with your role as an APS employee in the National Communications Branch of the Department.

The Department’s social media policy was provided to all Departmental staff via email on 1 June 2012. That policy relevantly provides that:

APS employees must still uphold the APS Values and Code of Conduct even when material is posted anonymously, or using an ‘alias’ or pseudonym, and should bear in mind that even if they do not identify themselves online as an APS employee or an employee of their agency, they could nonetheless be recognised as such. As 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. Social media websites are public forums. Inappropriate public comment on such sites could put employees at risk of breaching the Code of Conduct.

I consider that you were sufficiently aware of the Department’s policy in relation to the use of social media.

You continued to post comments on the LaLegale twitter account after the forwarding of the DIAC policy to all staff on 1 June 2012, which were wholly inconsistent with the Department’s social media policy, and you did not remedy your behaviour.

You also continued to post material that related to the Department’s policies and programs and government actions and actors after you were notified that an investigation into alleged misconduct relating to your use of Twitter had commenced, and after you were informed of my decision that your conduct constituted serious breaches of the Code. I consider that your conduct to date indicates that it is likely that you will continue to post material in contravention of the APS Values, the Code and the Department’s policies.

At our meeting of 19 October 2012 you made significant admissions in relation to the inappropriate comments on Twitter, expressed contrition and indicated that you had apologised to Mr Logan in writing earlier that day. However, in an email sent to Geoff McKinnon (copied to me) on 7 November 2012, you withdrew “any express or implied admission of wrong doing”. An employee’s contrition will generally constitute a mitigating factor in consideration of an appropriate sanction, your revocation of the admissions and your inconsistent responses to the determination of breach of the Code means that I do not consider that it would be proper for me to afford significant weight to your earlier admissions and contrition in considering what sanction should be imposed.

Ms Banerji’s employment was finally terminated on 13 September 2013 by Mr Geoff McKinnon, another delegate of the Secretary of the Department.

CIRCUMSTANCES SURROUNDING MS BANERJI’S TWEETS

There was one factual issue on which there was no agreement between the parties. That issue was the manner in which Ms Banerji posted one of her tweets. At the request of the parties the Tribunal now makes a finding of fact in relation to this question, even though, as indicated below, it considers that the question has no bearing on the outcome of Ms Banerji’s application. A statutory declaration of Ms Banerji dated 10 November 2017 was tendered. The substantive part of the declaration read:

I refer to paragraph 13 of the Agreed Facts. All tweets that were the subject of disciplinary action were done outside work hours and not from work premises, or work equipment.

Evidence was taken from Ms Banerji in the hearing, and she was cross-examined on that evidence. She told the Tribunal:

...all the tweets that I made were in my own time, on my own equipment. I did not at any stage ever, as far as I’m aware, and I certainly don’t agree that I did, tweet using office equipment or office time or sitting at my desk. It was always at home, on weekend, on public holidays, on sick leave, and the reason that I am so sure about those is because I was not speaking for the Department...

She added:

...my motivation for my tweets was essentially to explain the obligations that our country holds in relation to the Refugee Convention...

In answer to a question from the Tribunal about when and where she tweeted, she said:

They were all made from a location other than work and that will be evidenced by the time frame... the tweets were after-hours, for a start, but even those tweets where it may have been a daytime tweet, very rarely, that might have been my lunchtime...it might have been a public holiday, it may have been a weekend, I may have been on sick leave. So although I don’t expect that there will be any tweets made during working hours, it’s very important to remember that if any such tweets appear then there’s a subsequent question to be made: was it during my lunchtime? Was it a public holiday? Was it the weekend? Was I on sick leave?

Several of these tweets were reproduced and tendered. Counsel for Comcare took the Tribunal to one sequence occurring on 5 March 2012; the tendered records appear to show the Twitter handles of the correspondents, the text of the tweets and the time the tweets were sent. On that day Sandi Logan, the Department’s communications manager, tweeted:

Melbourne Uni’s first African refugee doctor to graduate in faculty’s 150th year. Read inspiring story of Garang Dut...

At 7:52am Ms Banerji (under the handle @LaLegale) tweeted:

Perhaps Dut can now make up for deaths and agonies of unlawful, immoral and destructive IDCs. Different kind of ‘refugee camps’

At 8:13am Mr Logan tweeted:

Give it a rest @LaLegale. #DIAC celebrates success, not mired in harping. If you have policy frustration, take it where it will make a diff.

Another tweeter, one Carol Christie, tweeted:

What a rude response! And where would you suggest @LaLegale take her ‘policy frustration’?

Ms Banerji retweeted Ms Christie’s response at 3.14pm. She agreed in her evidence that retweeting meant that her followers could read Ms Christie’s criticism of Mr Logan.

A letter dated 9 November 2012 from Ms Banerji to Ms White, the officer of the Department who was then considering the sanction of termination of employment against Ms Banerji, was tendered. Attached was an extensive submission from Ms Banerji setting out arguments against termination of her employment. In that submission this sentence appears:

Most of my tweets, except one that was in response to a DIAC tweet that was made in response to extreme provocation by my manager, were donein [sic] my own time and not during working hours.

Ms Banerji agreed with counsel for Comcare that the tweet she was referring to in this paragraph was her tweet at 8:13am on 5 March 2012. Ms Banerji told the Tribunal that she was surprised she wrote that in her submission because she recalled sending the tweet from home when she was on sick leave; she said I’m not sure why I wrote that. It was put to Ms Banerji that if her sick leave records showed that she was not on sick leave that day, then she must have retweeted Ms Christie’s criticism of Mr Logan while she was at work. She responded there’s logic in what you say... She was asked to confirm that there was at least one occasion when she tweeted during working hours, as conceded in her submission of 9 November 2012. She responded that the concession in that submission was a puzzle to her, and that she did not recall writing it. She said that she wrote the submission under extreme stress. She later described the concession as an error, and later again as a total mystery to me. She continued to insist that she was on sick leave on 5 March 2012. After leaving the witness box, Ms Banerji submitted from the bar table that the stress at work was so bad that I sometimes used to have to just go out to walk, and that the tweet may have been made while on such a walk. Counsel for Comcare sought to tender Ms Banerji’s leave record. Ms Banerji objected to the tender, but the objection was later withdrawn. The tendered leave record appears to disclose that Ms Banerji took no leave from work on 5 March 2012.

Consideration

Ms Banerji appears to have been a prolific tweeter. Ms Hary noted in her investigation report that LaLegale had made over 9000 tweets. Yet a cursory examination of the tweets in evidence before the Tribunal suggests that she had usually been careful, even assiduous, in avoiding posting tweets during working hours. The Tribunal understands Comcare’s contention to be that Ms Banerji deviated from this policy on only one occasion, at 3.14pm on 5 March 2012, when she retweeted a tweet critical of the Department’s spokesman. If there were other tweets purportedly made during working hours, they were not drawn to the Tribunal’s attention. The Tribunal takes official notice that 3.14pm on a working day would fall within core public service hours, and that Monday, 5 March 2012 was not a public holiday in the ACT. Ms Banerji conceded, in writing on 9 November 2012, that she had on one occasion tweeted during business hours. When confronted with that concession in the witness box she seemed to retract it, and was unable to explain why she had made it in the first place. Even if the Tribunal accepts that the statement was written under extreme stress, it is difficult to understand why the statement would emphatically restate the prudent approach she took to tweeting generally but then include a specific carve-out for a particular incident (which she admitted happened on 5 March 2012) unless that is what had actually happened. The written concession was made eight months after the incident in question; by contrast, her recollection of this day in the witness box 5 years later seemed confused and erratic. Her evidence was initially to the effect that any tweet sent during public service business hours must have been posted on a day when she took sick leave. The Tribunal accepts the documentary evidence that she did not take sick leave on 5 March 2012. Ms Banerji’s late suggestion that the tweet may have been made while she was taking a walk outside her workplace is unpersuasive. Because we were asked by the parties to make a finding of fact on this question, we find that Ms Banerji did retweet a comment critical of her employer on Monday, 5 March 2012, in the course of her employment. However, as indicated below, we believe nothing turns on this finding.

OBLIGATIONS ON PUBLIC SERVANTS

The Public Service Act 1999 (the PSA) sets out, inter alia, the APS values and the Code for public servants. It has been amended from time to time; the provisions quoted in this decision were those applying in 2012, when Ms Banerji posted her tweets and when the investigation was conducted by the Department. Section 10 of the PSA provided:

10 APS Values

(1) The APS Values are as follows:





(a) the APS is apolitical, performing its functions in an impartial and professional manner...

(g) the APS delivers services fairly, effectively, impartially and courteously to the Australian public and is sensitive to the diversity of the Australian public...

Section 13 sets out the Code. In 2012 the relevant provisions read as follows:

(1) An APS employee must behave honestly and with integrity in the course of APS employment...



(7) An APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment...



(11) 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...

Sanctions for breach of the Code are set out in s 15, which read:

Breaches of the Code of Conduct



Sanctions that may be imposed



(1) An Agency Head may impose the following sanctions on an APS employee in the Agency who is found (under procedures established under subsection (3)) to have breached the Code of Conduct:



(a) termination of employment;



(b) reduction in classification;



(c) re-assignment of duties;



(d) reduction in salary;



(e) deductions from salary, by way of fine;



(f) a reprimand...

Both the Public Service Commissioner and the Department have promulgated guidelines to guide employees. The Tribunal is entitled to consider these guidelines in assessing the extent, if any, to which Ms Banerji may have breached her obligations under the PSA. In Drake v Minister for Immigration and Ethnic Affairs (1999) 46 FLR 409 the Federal Court observed (at 420):

In some cases, the Tribunal may be expressly required by the Act conferring the right of appeal to regard itself as bound by the principles formulated by the Minister in administering some aspect of the Act: see, for example, Dairy Industry Stabilization Act 1977 (Cth), ss 11A and 24A. But that is not the case here. There was not, in the present matter, any express statutory provision either requiring or authorizing the Tribunal to determine the matter in accordance with relevant government or ministerial policy.



In a matter such as the present where it was permissible for the decision maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision. It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself. If the original decision maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.

The guidelines promulgated by the Department (the Department Guidelines) offered, at the relevant time, the following guidance to departmental staff in relation to the use of social media:

Use of social media by DIAC employees...

Making public comment

Public comment, in its broadest sense, includes comment made on political or social issues at public speaking engagements, during radio or television interviews, on the internet... Today, the ability to make comment on any issue, whether it relates to public or personal attitudes or perceptions is greatly enhanced by the ability to access the internet.

Consequently, the synergies between making public comment and participating online require staff to consider their responsibilities to DIAC, the APS Values and the Code of Conduct, including Regulation 2.1, each time they participate in either an official or unofficial (private) capacity.

...

Making comment in an unofficial capacity

...

Private: DIAC employees may generally make comment in their private capacity; however, if must be clear they are expressing their own view having regard to the general principles set out below.

Making public comment in an unofficial capacity – general principles

It is not appropriate for DIAC employees to make unofficial public comment that is, or perceived as:

...





compromising their ability to fulfil their duties professionally in an unbiased manner (particularly where comment is made about DIAC policy and programs)





harsh or extreme in its criticism of the government, a member of parliament or other political party and their respective policies that questions the staff member’s ability to work professionally, efficiently or impartially – such comments do not have to relate to the staff member’s area of work.





strong criticism of DIAC administration that could disrupt the workplace (grievance resolution already exists within DIAC and those procedures need to be followed)

...





unreasonable or harsh criticism of DIAC stakeholders, their clients and staff





compromising public confidence in DIAC or the APS.

It is quite acceptable for DIAC employees to take part in the political life of their communities. The APS Values stipulate that the APS is, among other things, ‘apolitical, performing its functions in an impartial and professional manner’. This does not mean that DIAC employees must be apolitical in their private affairs. Employees should, however, avoid behaving in a ways [sic] which suggests that they cannot act apolitically or impartially in their work...

An Australian Public Service Commission Circular (2012/1) outlined, in an advisory rather than a prescriptive fashion, considerations for public servants making public comments (the APS Guidelines):

Making public comment

APS employees have the same right to freedom of expression as other members of the community, subject to legitimate public interests, such as the maintenance of an impartial and effective public service in which the community can have confidence.

The term ‘public comment’ is used broadly, and includes comment made on current affairs

at public speaking engagements

during radio or television interviews

on the internet (including blogs, social networking sites and other online media that allow user participation and interaction)...

in other forums where the comment is intended for, or may be accessed by, the community.

Different roles

Broadly speaking, APS employees make public comment in two capacities: official and unofficial.

...

Making comment in an unofficial capacity

Outside the role of their APS employment, employees may wish to make public comment in a professional or a private capacity.

...

Private. APS employees may generally make public comment in a private capacity, so long as they make it clear they are expressing their own views.

In either case, employees should have regard to the general principles set out below.

Making public comment in an unofficial capacity—general principles

The Code of Conduct requires APS employees to behave at all times 'in a way that upholds the APS Values and the integrity and good reputation of the APS'—section 13(11) of the Public Service Act 1999 (the PS Act). When APS employees are making public comment in an unofficial capacity, it is not appropriate for them to make comment that is, or could be perceived to be:

being made on behalf of their agency or the Government, rather than an expression of a personal view

compromising the APS employee's capacity to fulfil their duties in an unbiased manner. This applies particularly where comment is made about policies and programmes of the employee's agency

so harsh or extreme in its criticism of the Government, a member of parliament from another political party, or their respective policies, that it raises questions about the APS employee's capacity to work professionally, efficiently or impartially. Such comment does not have to relate to the employee's area of work

so strong in its criticism of an agency's administration that it could seriously disrupt the workplace. APS employees are encouraged instead to resolve concerns by informal discussion with a manager or by using internal dispute resolution mechanisms, including the APS whistleblowing scheme if appropriate

a gratuitous personal attack that might reasonably be perceived to be connected with their employment

unreasonable criticism of an agency's clients and other stakeholders

compromising public confidence in the agency or the APS.

At all times, APS employees must be mindful of the requirements set out in Public Service Regulation 2.1 concerning the disclosure of information.

...

It is quite acceptable for APS employees to take part in the political life of their communities. The APS Values stipulate that the APS is, among other things, 'apolitical, performing its functions in an impartial and professional manner', but this does not mean that APS employees must be apolitical in their private affairs. Rather, it means that employees should avoid behaving in a way that suggests they cannot act apolitically or impartially in their work.

...

When considering making comment in an unofficial capacity, employees might wish to reflect on the following questions:

Could the comments reasonably be expected to cause the agency's clients and other stakeholders, including members of Parliament—whether members of the Government, the Opposition, independents, or other parties—to lose confidence in the employee's ability to work in an impartial and professional manner?

Would comment of this kind, without proper justification, be likely to lower or undermine the reputation of the individual agency or of the APS as a whole?

Are these comments in line with how the community in general expects the public service to operate and behave?

Are these comments lawful? For example, do they comply with anti-discrimination legislation and laws relating to defamation?

Inappropriate public comment by APS employees may result in sanctions under the PS Act.

Participating online

General principles

In May 2010 the Government provided its response to the Final Report of the Gov 2.0 Taskforce, Engage: Getting on with Government 2.0. The Government agreed to the report's central recommendation—a 'declaration of open government'—which stated, in part:

online engagement by public servants, involving robust professional discussion as part of their duties or as private citizens, benefits their agencies, their professional development, those with whom they are engaged and the Australian public. This engagement should be enabled and encouraged.

Making public comment online is becoming increasingly common for APS employees—in official, professional, and private capacities. Employees may make public comment on, for example, blogs, social networking sites, microblogging sites, and online news sites. The same principles apply to online comment as to any other kind of public comment—as do the APS Values and Code of Conduct.

However, there are some additional considerations that apply to online participation. The speed and reach of online communication means that comments posted online are available immediately to a wide audience. Material online effectively lasts forever, may be replicated endlessly, and may be sent to recipients who were never expected to see it, or who may view it out of context.

The APS Values and Code of Conduct, including Public Service Regulation 2.1, apply to using online media in the same way as when participating in any other public forum. The requirements include:

behaving with respect and courtesy, and without harassment

dealing appropriately with information, recognising that some information needs to remain confidential

delivering services fairly, effectively, impartially and courteously to the Australian public

being sensitive to the diversity of the Australian public

taking reasonable steps to avoid conflicts of interest

making proper use of Commonwealth resources

upholding the APS Values and the integrity and good reputation of the APS

not acting in a way that would call into question the APS employee's ability to be apolitical, impartial and professional in the performance of their duties

...

Commenting online in an unofficial capacity

From time to time, APS employees may seek to participate robustly, like other members of the Australian community, in policy conversations.

The principles that apply to employees making any unofficial public comment also apply to such comment made online. There are some additional considerations, though, to bear in mind.







Any information an APS employee posts online relating to their employment (such as naming their employer or describing their role) is able to be located easily and quickly by a search engine, and this information may be taken out of context.

APS employees must still uphold the APS Values and Code of Conduct even when material is posted anonymously, or using an 'alias' or pseudonym, and should bear in mind that even if they do not identify themselves online as an APS employee or an employee of their agency, they could nonetheless be recognised as such.

Employees should not rely on a site's security settings for a guarantee of privacy, as material posted in a relatively secure setting can still be copied and reproduced elsewhere. Further, comments posted on one site can also be used on others under the terms and conditions of many social media sites.

As 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.







Social media websites are public forums. Inappropriate public comment on such sites could put employees at risk of breaching the Code of Conduct. If employees have concerns relating to an agency, they can seek advice within the agency or from the Ethics Advisory Service about appropriate avenues for raising these...

The tenor of these comments in the APS Guidelines was reiterated for employees of the Department in a document entitled ‘What is Public Comment?’ Workplace Relations and Conduct Section Fact Sheet, as follows:

... Tips for employees who are considering making public commentary

When considering making a public comment, APS employees need to ensure they fully understand the APS values and Code of Conduct and how they apply to official and unofficial communications. Before doing so, seek advice within the department or from the APSC’s Ethics Advisory Service to ensure any comments you wish to make are appropriate.

...

In so doing, please reflect on the following questions:

Could the comments reasonably be expected to cause the department’s clients and other stakeholders, including members of Parliament – whether members of the government, the opposition, independents, or other parties – to lose confidence in the employee’s ability to work in an impartial and professional manner?

Would comment of this kind, without proper justification, be likely to lower or undermine the reputation of the department or of the APS as a whole?

Are these comments in-line with how the community in general expects the public service to operate and behave?

Are these comments lawful? For example, do they comply with anti-discrimination legislation and laws relating to defamation.

MS BANERJI’S CONTENTIONS

Ms Banerji’s counsel made two submissions to the Tribunal on the question of the implied freedom of political communication: one following the hearing and a further one in reply to Comcare’s submission. He characterised her tweets as follows: (a) Entirely anonymous i.e. with no identification of the author;

(b) Did not use any departmental information i.e. the comments concerned her perception of human rights issues arising from public information concerning the predicament of refugees and the government’s refugee policy.

(c) Ms Banerji’s tweets spanned the transition from the ALP government to the LP government in 2012 and included criticisms of both governments’ refugee policies [3] ;

(d) Did not involve the use of any departmental equipment i.e. all tweets were from her own phone;

(e) With possibly one exception, all tweets were carried out on her own time i.e. not at work. Counsel for Ms Banerji contended that the Code of Conduct must be consistent with both the principle of legality and s 15A of the Acts Interpretation Act 1903. He observed that:

The Code of Conduct cannot and does not reach the kind of political comment made, in the manner in which it was made, by the Applicant, and accordingly the exercise of the disciplinary power under the Code was inconsistent with the constitutional restraint on burdening the freedom of political communication and is therefore ultra vires.



No ultra vires exercise of a statutory power can be a reasonable one and hence cannot be reasonable administrative action taken in a reasonable manner within the meaning of s 5A of the Act.

On the principle of legality, it was submitted:

The principle of legality was affirmed in A-G (SA) v Corporation of the City of Adelaide [2013] HCA 3. This principle requires that statutes be construed so as to avoid as far as reasonably possible encroaching on fundamental rights and freedom at common law, including the freedom of speech. French CJ put it thus:



42. Statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law. The common law presumption against the parliamentary intention to infringe upon such rights and freedoms has been described as an aspect of a "principle of legality" which governs the relationship between parliament, the executive and the courts. The presumption is of long standing and has been restated over many years. It can be taken to be a presumption of which those who draft legislation, regulations and by-laws are aware. To apply it is to act conformably with legislative intention as explained by this Court in Lacey v Attorney-General (Qld).



43. Relevantly, the construction of s 667(1)(9)(XVI) is informed by the principle of legality in its application to freedom of speech. Freedom of speech is a long-established common law freedom. It has been linked to the proper functioning of representative democracies and on that basis has informed the application of public interest considerations to claimed restraints upon publication of information. It is never more powerful than when it involves the discussion and criticism of public authorities and institutions, be they legislative, executive or judicial. An example of its strength in that context is the common law impediment to local authorities and public authorities suing for defamation. The "paramount importance" accorded to freedom of expression and of criticism of public institutions has also played a part in the development of the principles of the law of contempt. It played a part in the reasoning of this Court in Davis v The Commonwealth in the characterisation, for constitutional purposes, of legislation said to be incidental to a substantive head of power. It was also identified as a material consideration in similar reasoning adopted by Mason CJ in Nationwide News Pty Ltd v Wills. On the question whether a law could be said to be reasonably proportional and therefore incidental to a head of power, Mason CJ said:



"in determining whether that requirement of reasonable proportionality is satisfied, it is material to ascertain whether, and to what extent, the law goes beyond what is reasonably necessary or conceivably desirable for the achievement of the legitimate object sought to be attained and, in so doing, causes adverse consequences unrelated to the achievement of that object. In particular, it is material to ascertain whether those adverse consequences result in any infringement of fundamental values traditionally protected by the common law, such as freedom of expression." (footnote omitted)



As discussed below, analogous reasoning applies to the determination whether a by-law is, or is capable of being, a reasonable and proportionate, and therefore valid, exercise of the by-law making power. Its effect upon the exercise of freedom of expression will be a material consideration.



His Honour went on say that this common law principle can inform the construction and characterisation, for constitutional purposes, of Commonwealth statutes. (References omitted.)

The submission proceeded to argue that s 15A of the Acts Interpretation Act 1901 is consistent with these principles:

Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power.

Ms Banerji submitted that the principle of legality and s 15A should be read in conjunction with the implied freedom of political communication. Her submission argued:

The Constitutional doctrine known as the implied freedom of political communication places limits on the capacity of any Commonwealth statute, including the Public Service Act 1999, to restrict the right of political communication. The same doctrine and s 15A Acts Interpretation Act 1901 preclude a Commonwealth statute being accorded a construction or application that would exceed the limits of the legislative power i.e. the Public Service Act 1999 cannot explicitly limit freedom of political comment and cannot achieve the same outcome via the manner in which the legislation is:

construed (the Legislative restriction); or applied by the Executive (the Executive restriction).

The Applicant contends that the Public Service Act 1999 and its statutory Code of Conduct cannot limit or burden an employee’s common law right or freedom to make the kind of political comments made by Ms Banerji, in the manner in which she made them; nor does it permit the Executive to apply the Code in a manner that has the same outcome.



In short, when a person commences employment with the Commonwealth they are not required and cannot be compelled to turn off their moral and political brain. They are free to engage in the political process in the same manner as other citizens save only that they cannot use or misuse their office in that process.



It is the Applicant’s case that her tweets were inherently of a political nature concerning government policy on refugees. They did not involve the use or misuse of anything arising from her office as a public servant and did not go beyond the generality that features commonly in public criticism of the government’s refugee policy. (Original emphasis)

The submission discusses a number of the seminal cases on the implied freedom doctrine, which traces its present day genesis to the High Court’s decision in Lange. It also cites the discussion on the implied freedom in Professor Zines’ The High Court and the Constitution.[4] Zines comments that the doctrine operates as a constraint on both the Commonwealth’s legislative and executive power. The test for validity of a law or executive action has two limbs (the Lange test):

When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people... If the first question is answered "yes" and the second is answered "no", the law is invalid. [567-568].

Zines further observes that the High Court in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 accepted an amendment to the second limb of the Lange test by insertion of the words in a manner after the words legitimate end as they appear above. He also opines that comment on the manner of operation of the government by the Executive are within the protected communications.[5] The submission then discussed two seminal decisions of the High Court. In Wotton v Queensland [2012] HCA 2 the plaintiff had been convicted of rioting in protest relating to the death in custody of an indigenous man on Palm Island. The Queensland Parole Board imposed restrictions on his right to attend public meetings and speak with the media. The conditions were imposed under a statutory power to impose conditions the Board reasonably considers necessary. The plaintiff sought a declaration of the invalidity of the statutory provision under which the order was made but did not seek judicial review of the Board’s actual decision. He argued that the statutory provision infringed the constitutionally protected freedom of political communication. The majority decision in the High Court applied the two Lange tests as modified in Coleman v Power and held that the imposed condition did burden the freedom of political communication and thereby infringed the first limb of the Lange test. On procedural grounds it did not determine the application of the second of the tests in Lange, but noted that the exercise of the executive power by the Board was constrained by the constitution restriction on the legislative power (at [21]):

...while the exercise of legislative power may involve the conferral of authority upon an administrative body such as the Parole Board, the conferral by statute of a power or discretion upon such a body will be constrained by the constitutional restrictions upon the legislative power, with the result that in this particular respect the administrative body must not act ultra vires.

The submission to the Tribunal notes that in the present case Ms Banerji challenges both the construction of the statutory provisions (the Code) and its application by her employer. In Brown v Tasmania [2017] HCA 43 the Tasmanian Parliament had enacted legislation that prohibited political protests in certain Tasmanian forests. The prohibition was enforceable by arrest where a police officer formed the view that a person was engaging in protest activity and had ignored a direction to leave the forest. The forests were otherwise open to access by the public except where forest management activities were actually occurring. The plaintiff and others were convicted of an offence under that legislation. They challenged the validity of the legislation and the convictions. The High Court (Gordon J partly dissenting; Edelman J dissenting) held that these parts of the legislation were invalid because they impermissibly burden the implied freedom of political communication contrary to the Constitution. Kiefel CJ, Bell and Keane JJ (Nettle J concurring) addressed both limbs of the Lange test. In relation to the first limb it was said:

88. It is necessary to keep firmly in mind that the implied freedom is essential to the maintenance of the system of representative and responsible government for which the Constitution provides. The implied freedom protects the free expression of political opinion, including peaceful protest, which is indispensable to the exercise of political sovereignty by the people of the Commonwealth. It operates as a limit on the exercise of legislative power to impede that freedom of expression. The enquiries posed by Lange are the indispensable means by which a legislative measure which is apt to impede the free flow of political communications may be justified. The first enquiry is whether the freedom is in fact burdened.



...



90. Where a statute is said to impermissibly burden the freedom, the first enquiry is whether the statute in fact burdens the freedom. The extent of the burden is a matter which falls to be considered in relation to the assessments required by the second limb of Lange. The first enquiry requires consideration as to how the statute affects the freedom generally. It is not answered by reference to the operation of the statute in individual cases, although such evidence may provide useful examples of the statute's practical effect, and therefore of the burden the statute may have on the freedom. This Court has said more than once that the freedom spoken of is not a personal right or freedom. The freedom is better understood as affecting communication on the subjects of politics and government more generally and as effecting a restriction on legislative power which burdens communications on those subjects.

It was not disputed that the protestors were engaged in political communications i.e. about matters relating to politics or government (at [89]) or that the legislation purported to burden or inhibit those communications (at [95], [118] and [396]). The live issue was the second limb of Lange. The second limb of Lange has regard to both the legislative intent and the manner in which that intent is implemented by the legislation (at [103]). The issue for their Honours concerned the manner in which the legislative intent was implemented i.e. whether the prohibition on protestors was reasonably appropriate and adapted to serve a legitimate end of forestry management [123]. Their Honours commented at the outset that It is difficult to comprehend that every form of protest will necessarily be incompatible with this purpose (at [110]). Their Honours noted that any burden on the freedom of political communication required justification under the second limb of Lange; the heavier the burden the greater the justification needed [128]. It is for those seeking to sustain the burden on the freedom to advance the justification for it [131]. Their Honours found that the challenged provisions were directly solely to discouraging protestors and had little to do with forestry management [135]. Ms Banerji’s submission then turned to what it called the potential practical implications of Comcare’s position. It maintained:

The implications of the Respondent’s position do not stop with people employed under the Public Service Act. There is a plethora of Commonwealth legislation under which people are employed which include government instrumentalities and corporations, the ABC, universities, legislation setting up courts and tribunals etc. They each have their own disciplinary and termination provisions performing the same function as the APS Code of Conduct. A finding that these other disciplinary provisions and their implementation are not constrained by the constitutional restriction on impairing free political communications, would expose person employed under these legislations to a summary dismissal for engaging in normal political discourse in a manner that does not involve any use or misuse of their employment.



The ripples of causation do not stop with Commonwealth Acts but extend to regulations and other delegated statutory instruments made under a parent Commonwealth Act. For example, almost all Enterprise Agreements in Australia are made under the Fair Work Act or its predecessor and extend to a large part of the private and public sector in Australia. Most Enterprise Agreements contain the whole or at least the details of the disciplinary provisions. Unions are registered and regulated under the same Commonwealth parent Act If the Respondent’s position is correct then the construction and application of these disciplinary provisions are not subject to the constitutional constraint on burdening free political speech.



If it were the case that the mere engagement in Commonwealth employment ( or any public or private sector employment regulated by Commonwealth Acts, Awards or Enterprise Agreements) precludes an employee from expressing private views inconsistent with the government of the day or their employer (as the case may be), then by way of example only, no public servant or other Commonwealth employees (including judicial officers) could:

(a) express any criticism of the government in the capacity of an active member of the political party in opposition;



(b) participate in a public demonstration against government policies,



(c) engage in industrial action against government wage policy;



(d) express any negative view on government policy to friends over dinner;



(e) make any criticism of government policy when delivering public addresses or conference papers etc.

No private sector employee could privately or publically criticise their employer for political actions taken by the employer (as opposed to the government)...



The issue at stake in this case also extends to employees of State and Territory governments employed under statutes of that jurisdiction...



The sum of the above categories of employees covers most of the employees in Australia, who then stand exposed to the loss of the right to engage in political discourse to the extent that the discourse in question is inconsistent with the interests of their employers.

The Submission then proceeds to apply the Lange tests to the Code. It contends:

Communication and public debate concerning the government’s refugee policy is inherently a political one within the meaning of the first limb of Lange. It is probably the single most debated and contested of all governmental policies. Ms Banerji takes this proposition to be self evident and without need of further elaboration.



If the Code of Conduct can extend to prohibiting Ms Banerji’s participation in private communication, debate and commentary concerning the government’s refugee policy, then it burdens the freedom of political communications within the meaning of the first limb of the Lange test. It is for the Respondent to show that the burden is justified in the circumstances of the case.



This leaves the second limb to be considered. The legislative intent of the Code is to regulate the conduct of APS officers and provide a disciplinary framework.



The Code forms part of a wider statutory employment framework. No part of that statutory framework directly prohibits participation in private political communications. Nor does the Code itself expressly do so. If the Code did extend to the private political communications of an APS officer such as is presently contended by the Respondent, then this must the result of the manner in which the Code is construed. If the construction of the Code does not extend so far then no policy or administrative action on the part of the Public Service Commissioner or Department of Immigration can enlarge on the scope of the Code or affects its construction.



If the Code is construed in a manner that limits its operation by reference to the constitutional freedom of political communication, then it is not open to the Department to purport to apply the Code in a manner that brings it into conflict with the constitutional principle.



The Code is about regulating the conduct of APS officers in that capacity. It is not about regulating their personal political beliefs; and if it were, then the Code would be in open conflict with the Constitution and other human rights laws.



The Code may legitimately regulate public political communications by APS officers where that communication would involve the use of Commonwealth resources or the disclosure of confidential departmental information. It may legitimately regulate public communication in which an APS officer seeks to rely on their office as a basis for, or to lend credibility to, their public statements (Gaynor). But the Commonwealth has no right to demand the intellectual or moral obedience of APS officers to the policies of the government of the day; or to otherwise burden free private political communications by APS officers.



By its actions in dismissing Ms Banerji, the Commonwealth has impermissibly trespassed on the constitutionally forbidden ground of personal political communication.

Finally, the submission comments on the application of the APS Guidelines to Ms Banerji’s position. The submission argues:

The [APS] Guidelines are policy and not law. They are not binding on anyone but do provide relevant considerations for delegates involved in Code of Conduct or other disciplinary inquiries. They are also a relevant consideration for Comcare’s delegate when construing and applying s 5A of the Act.



The Guidelines contain the following statements of general principle. In the generality in which they are expressed, these principles are consistent with the constitutional legislative and executive constraints and consistent with the Applicant’s expression of her private political views:



APS employees have the same right to freedom of expression as other members of the community, subject to legitimate public interests, such as the maintenance of an impartial and effective public service in which the community can have confidence.



...



It is quite acceptable for APS employees to take part in the political life of their communities. The APS Values stipulate that the APS is, among other things, ‘apolitical, performing its functions in an impartial and professional manner’, but this does not mean that APS employees must be apolitical in their private affairs. Rather, it means that employees should avoid behaving in a way that suggests they cannot act apolitically or impartially in their work.



...



The Guidelines differentiate between:

Official and unofficial public comments. Official communications are those made on behalf of the department or government. Unofficial are those made as a departmental employee speaking in that capacity but that does not necessarily represent departmental policy. Professional or private communications.

Broadly speaking, APS employees make public comment in two capacities: official and unofficial.



...



Outside the role of their APS employment, employees may wish to make public comment in a professional or a private capacity



...



Private. APS employees may generally make public comment in a private capacity, so long as they make it clear they are expressing their own views.



The Applicant’s comments were made in a private capacity.



The Guidelines do not specifically address online political comment in a purely private capacity other than the general statements set out above. The Guidelines do address online unofficial political comment which is unapproved comment in a departmental capacity. Unofficial comment is not the same as private comment.



On the issue of unofficial comment the Guide provides:



The Code of Conduct requires APS employees to behave at all times ‘in a way that upholds the APS Values and the integrity and good reputation of the APS’—section 13(11) of the Public Service Act 1999 (the PS Act). When APS employees are making public comment in an unofficial capacity, it is not appropriate for them to make comment that is, or could be perceived to be:

being made on behalf of their agency or the Government, rather than an expression of a personal view

compromising the APS employee’s capacity to fulfil their duties in an unbiased manner. This applies particularly where comment is made about policies and programmes of the employee’s agency

so harsh or extreme in its criticism of the Government, a member of parliament from another political party, or their respective policies, that it raises questions about the APS employee’s capacity to work professionally, efficiently or impartially. Such comment does not have to relate to the employee’s area of work

so strong in its criticism of an agency’s administration that it could seriously disrupt the workplace. APS employees are encouraged instead to resolve concerns by informal discussion with a manager or by using internal dispute resolution mechanisms, including the APS whistleblowing scheme if appropriate

a gratuitous personal attack that might reasonably be perceived to be connected with their employment

that might reasonably be perceived to be connected with their employment unreasonable criticism of an agency’s clients and other stakeholders

compromising public confidence in the agency or the APS. (emphasis added)

The Guidelines on unofficial comment are principally concerned with the public mistaking private comments for official comments. In the present case Ms Banerji’s comments were entirely unanimous and in no way reflected her identity or place of employment.



If the above were where the policy finished then it may be accepted as being consistent with the constitutional legislative and executive principles. But the Guidelines do not stop there. They go on to provide guidance on private communications (not official or unofficial communications) that is essentially contradictory to the general principles of the Guidelines set out above.



This reversal of policy is achieve by the sleight of hand of deeming any private and anonymous online communication to be an unofficial communication i.e. the author and their place of employment are assumed to be known to the reader notwithstanding the explicit absence of any such identifiers in the communications:



The principles that apply to employees making any unofficial public comment also apply to such comment made online. There are some additional considerations, though, to bear in mind. Any information an APS employee posts online relating to their employment ( such as naming their employer or describing their role ) is able to be located easily and quickly by a search engine, and this information may be taken out of context... (emphasis added)



The Applicant did neither of the [underlined] things.



The Guidelines continue:



APS employees must still uphold the APS Values and Code of Conduct even when material is posted anonymously, or using an ‘alias’ or pseudonym , and should bear in mind that even if they do not identify themselves online as an APS employee or an employee of their agency, they could nonetheless be recognised as such.



...



As 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 ....(emphasis added)



These assumptions are just that – assumptions. By making this assumption the Guidelines render nugatory the distinction between public unofficial comments and private comments and assimilate the latter into the former. In so doing the Guidelines have the practical effect of banning (or at least discouraging and threatening retribution) private expression of political opinion by APS officers, notwithstanding the Guidelines own recognition that APS officers should have the same freedom of private political expression as other citizens.



In the present case no member of public is shown to have been aware of the Applicant’s identity or place of employment. Her identify was only disclosed by the department following specific IT investigations carried out by the department with the view to locating and identifying the person who had the temerity to criticise its refugee policy.

COMCARE’S CONTENTIONS

Comcare’s submission to the Tribunal was summarised as follows:

The Respondent contends that the Code of Conduct provided for in the PS Act, properly construed, is within the legislative competence of the Commonwealth Parliament. Further, the specific exercise of the power fell within the authority conferred by the Parliament on the Delegate and constituted a lawful exercise of the power. Consequently, the decision to terminate constituted reasonable administrative action taken in a reasonable manner.

The submission summarises the doctrine of the implied freedom of political communication, as articulated by the High Court in Lange and Brown, in terms not substantially different to those advanced by Ms Banerji. The submission continues:

In order to answer these questions it is necessary to consider what is the proper construction of the statute in question.



The relevant restriction on freedom of political communication in the PS Act is s 13(11) which provides that “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 APS Values are found in s 10(1) of the PS Act.



The values which are relevant to considering any question concerning restriction on freedom of political communication are:

(a) The APS is apolitical, performing its functions in an impartial and professional manner;



(e) The APS is openly accountable for its actions, within the framework of Ministerial responsibility to the Government, the Parliament and the Australian public.

After observing that the long-established common law freedom of speech is a freedom which the principle of legality protects, the submission proceeds:

Relevant statutory context includes the following:



Section 3:



The main objects of the Act are:

(a) To establish an apolitical public service that is efficient and effective in serving the government, the Parliament and the Australian public...



(d) To establish rights and obligations of APS employees.

The PS Act is made in a constitutional context which contemplates Ministers who are responsible to Parliament administering departments of state whose officers are appointed pursuant to an Act of Parliament.



Having regard to this context the following can be said about s 13(11) of the PS Act.



First, it regulates the conduct of public servants while they are at work and outside work.



Second, it does so, only to the extent necessary to ensure that the APS Values are upheld and that the integrity and good reputation of the service is not harmed.



Third, to the extent that statements and communications by public servants outside of work fail to uphold the APS Values, by, for example, compromising the APS’s reputation as an apolitical public service or in some other way harming the integrity or reputation of the public service, those statements can constitute a breach of the Code of Conduct. Public Servants are otherwise free to make whatever statements (political or otherwise) they choose outside of work.

The submission then considers the application of the Lange test to the Code. It concedes that the Code does burden the freedom of political communication:

The first Lange question is directed at determining whether the relevant law imposes a meaningful constraint on political communication. But the question is not just a threshold which must be passed to advance to the other Lange questions, the answer also informs the subsequent analysis and the intensity of judicial scrutiny to which the law is subject.



With that in mind, the simple answer to the question of whether political communication is burdened by s 13(11) is yes. However, it is important to note that the burden falls on a narrow class of persons and is narrow in its restriction on political communication.



First, it only applies to persons who choose to be employed in the executive branch of the Commonwealth government. Second, the restriction is limited to political communications which damage the reputation of the Australian Public Service as an apolitical service or otherwise damage the integrity or good reputation of the service or violate the APS Values in some other way. Non-public servants are not affected by the law and public servants remain free to engage in political communications which do not compromise the apolitical nature of the service or which do not otherwise uphold APS Values. That narrow understanding of the scope of s 13(11) is consistent with the operation of the principle of legality.



The APS Commissioner issued guidelines in 2012 entitled Commission’s guidance on making public comment and participating online to ensure that the Executive’s understanding of the limited extent to which public servants were restricted by the Code from engaging in political discourse was properly understood. Accepting that the Executive’s interpretation of the law is given no special deference in the Australia legal system, the guidelines present a narrow interpretation of the reach of the Code of Conduct which in the Respondent’s submission is consistent with the proper construction of the Code having regard to the principles identified at paragraphs 29-35 above.



The guidelines provided:

(a) APS employees have the same right to freedom of expression as other members of the community, subject to legitimate public interests, such as the maintenance of an impartial and effective public service



(b) APS employees should avoid behaving in a way that suggests they cannot act apolitically or impartially in their work;



(c) When APS employees are making public comment in an unofficial capacity, it is not appropriate for them to make comment that is or could be perceived to be compromising the APS employee’s capacity to fulfil their duties in an unbiased manner. This applies particularly where comment is made about policies and programmes of the employee’s agency;



(d) It is not appropriate to make comment that is so harsh or extreme in its criticism of the Government, a member of parliament from another political party, or their respective policies, that it raises questions about the APS employee’s capacity to work professionally, efficiently or impartially;



(e) It is not appropriate to make comment that is so strong in its criticism of an agency’s administration that it could seriously disrupt the workplace;



(f) It is not appropriate to make comment that is a gratuitous personal attack that might reasonably be perceived to be connected with their employment;



(g) APS employees must still uphold the APS Values and Code of Conduct even when material is posted anonymously, or using an ‘alias’ or pseudonym, and should bear in mind that even if they do not identify themselves online as an APS employee or an employee of their agency, they could nonetheless be recognised as such;



(h) Comments posted online are available immediately to a wide audience. Material online effectively lasts forever, may be replicated endlessly, and may be sent to recipients who were never expected to see it or who may view it out of context.

The guidelines, which the Respondent submits accurately reflect the scope of the burden imposed by s 13(11) of the PS Act, make clear that there is no general restriction on public servants participating in political communication in their private capacity. However participation must be conducted in manner which does not adversely affect the workplace or undermine confidence in a public servant’s ability to discharge their duties appropriately.



While this is not an onerous burdening of the freedom of political communication, the Respondent accepts that it does constitute a burden nonetheless. Accordingly, the answer to the first Lange question is yes.

The submission then proceeds to ask whether, pursuant to the second limb of Lange, the purpose of the law is legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government:

The purpose of s 13(11) is directed towards maintaining an apolitical public service, and maintaining public confidence in that service. The maintenance of an apolitical public service is a feature of Westminster style democracies and is entirely consistent with the system of responsible government prescribed by the Australian Constitution...



The importance of maintaining public confidence in the integrity of the public service, and the role that regulating public comment by public servants has in doing so has been recognised in other common law jurisdictions. In Fraser v PSSRB [1985] 2 SCR 455, the Chief Justice of the Supreme Court of Canada noted that:



...a public servant is required to exercise a degree of restraint in his or her actions relating to criticism of government policy, in order to ensure that the public service is perceived as impartial and effective in fulfilling duties.



Accordingly the answer to the second Lange question is yes. The purpose of the law is legitimate and compatible with the system of government prescribed by the constitution.

The submission then argues, in considering the third limb of Lange, that the Code of Conduct is reasonably appropriate and adapted to advance the legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government:

In approaching this question the High Court has provided some additional tools of analysis which assist in answering the question. In particular it can on occasions be useful to ask:

(a) Is the law suitable in the sense of having a rational connection to the purpose of the provision;



(b) Is the law necessary in the sense that there is no obvious and compelling alternative means of achieving the same purpose which has a less restrictive effect on the freedom; and



(c) Is the law adequate in its balance having regard to the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.

The answers to each of those questions lead to the conclusion that the measure is reasonably appropriate and adapted to advance the law’s legitimate objective.



There is clearly a rational connection between the law’s goal of preserving public confidence in an impartial public service and the operation of the law. Indeed because of the way s 13(11) is expressed – directed as it is to upholding the APS Values rather than restricting political communication – it only operates to restrict political communication if the effect of the political communication undermines the APS Values or the integrity or good reputation of the APS. Accordingly the law is suitable to achieve its purpose.



The structure of the law also means that it goes only so far as is necessary in restricting freedom of political communication to preserve public confidence in the impartiality and integrity of the public service. If a political communication does not have an effect which undermines the APS Values or the integrity and good reputation of the APS, an APS employee is free to engage in the communication. Accordingly there is no other alternative which would be less restrictive in its impact on political communication but which would achieve the same objective.



For a similar reason, the law is adequate in its balance. There is an adequate balance between the narrow restriction imposed by s 13(11) and the important public interest purpose that it serves.



Consequently, the answer to the third Lange question is yes, the law is reasonably appropriate and adapted to advance its legitimate objective.



In these circumstances the relevant provisions of the PS Act are valid and not inconsistent with the implied freedom of political communication.

Comcare’s submission considers whether, if the Code is within the legislative competence of the Parliament, the Delegate validly exercised that power:

In approaching the question of the validity of the Delegate’s decision to terminate the Applicant’s employment two matters are relevant. First, the analytical framework laid down by the High Court in Wotton v Queensland (2012) 246 CLR 1, and the issues agreed between the parties.



In Wotton, the High Court laid down the following principles which draw a clear distinction between how constitutional issues are addressed and how administrative law issues should be addressed:

(a) While the exercise of legislative power may involve the conferral of authority upon an administrative body, the conferral by statute of a power or discretion upon such a body will be constrained by the constitutional restrictions upon the legislative power, with the result that in this particular respect the administrative body must not act ultra vires;



(b) Where a putative burden on political communication has its source in statute, the issue presented is one of a limitation on legislative power;



(c) Whether a particular application of the statute, by the exercise or refusal to exercise a power or discretion conferred by the statute, is valid is not a question of constitutional law – rather, the question is whether the repository of the power has complied with the statutory limits;



(d) If, on its proper construction, the statute complies with the constitutional limitation, without any need to read it down to save its validity, any complaint respecting the exercise of power thereunder in a given case does not raise a constitutional question as distinct from a question of the exercise of statutory power;



(e) If the power or discretion be susceptible of exercise in accordance with the constitutional restriction upon legislative power, then the legislation conferring that power or discretion is effective in those terms.

The parties have agreed that the only issue before the Tribunal is whether or not the termination of the applicant’s employment with the Commonwealth falls outside the exclusion in s 5A(1) of the Act, having regard to the implied freedom of political communication.



If the Tribunal determines that s 13(11) of the PS Act is, consistent with the submissions of the Respondent above, not invalid having regard to the implied freedom of political communication, then the section is effective in its terms and the decision of the delegate is not ultra vires. No further consideration of the exercise of the power is necessary or appropriate given the agreement between the parties.



However, if the Tribunal considers it necessary to consider the question of whether the decision of the Delegate was ultra vires, the Respondent submits that the decision of the Delegate was clearly open to her and supported by the legislation.



Section 13(11) of the PS Act required the Applicant to uphold at all times the APS Values and the integrity and good reputation of the APS. In particular this required the Applicant to uphold the value that the APS is apolitical, performing its functions in an impartial and professional manner. These provisions meant that if the Applicant engaged in actions, including political communications which undermined these values, she was susceptible to being dealt with under the Code of Conduct.



The communications the Applicant engaged in did undermine those values and undermine the integrity and good reputation of the APS.



The Applicant:

(a) Directly and publicly criticised in an offensive way the shadow minister for immigration



(b) Directly and publicly criticised her ultimate supervisor within the Department of Immigration



(c) Directly and publicly accused the Australian Government of not complying with its international law obligations



(d) Directly and publicly criticised the Australian Labor Party and the Prime Minister in offensive terms.

Accordingly it was open to the delegate to determine that by making inappropriate online comments which were harsh and extreme in their criticism of the Government and DIAC that the Applicant did breach s 13(11) of the PS Act. The finding of breach and the decision to terminate were open to the Delegate and were not ultra vires...



The proper finding of the Tribunal is that the applicant is not suffering from an injury as defined in the Act because the ailment from which she suffers is the result of reasonable administrative action taken in a reasonable manner.

MS BANERJI’S SUBMISSIONS IN RESPONSE

Counsel for Ms Banerji subsequently filed a submission responding to Comcare’s submission. The following arguments were advanced:

... the Applicant draws attention to the fact that her anonymous criticisms were of the government and not of the APS which are legally and conceptually different entities. The Code of Conduct and APS Values are about protecting the apolitical reputation of the APS not the government. It is an oxymoron to argue that the government of the day (or a political party) is apolitical and that its apolitical reputation needs to be protected.



The only exception to the above was her anonymous response to a tweet from a departmental officer who then made an online open criticism of the Applicant’s expressed opinions. The departmental officer did not know the identity of the Applicant at the time and so was responding to an unknown citizen but felt it appropriate to do so in his openly declared departmental capacity. The Applicant’s response was to that departmental officer personally and not to or about the APS or department. One could infer from the acceptability of this posting by the departmental officer that tweets by public servants supportive of the government are acceptable but not tweets critical of the government...



In terms of the Code, the Applicant made no criticism of the APS and therefore nothing she said brought the APS into disrepute.



The only reason that the identity of the Applicant as an APS officer became known was because the departmental officer concerned decided to use departmental resources to identify the unknown citizen that had the audacity to respond to the departmental officer’s prior online comment. This was not a case of the Applicant’s identity being apparent of discoverable by her online communicants but rather it was a case of the department actively seeking to find and expose her identity. It is in the nature of a plaintiff in a defamation matter that decides to put the content of the defamation in the public domain and then pleads that the defamatory material has been widely distributed.



...the [APS] Guidelines start off by acknowledging the right of public servants as citizens to participate in the political process which includes criticising the government or its policies. The Guidelines then deal with APS officers making public statement in their APS capacity and distinguish between comments made officially and unofficially. These categories have no bearing on the present 