High Court decision in Comcare v Banerji

The High Court decided that in certain circumstances it is reasonable for an employer to dismiss an employee for posting political content on social media.

You can read the High Court's decision in full here. 

 

The decision is disappointing, and it does have implications for public servants – but there was some good news as well.

 

The High Court did not find that the Constitution provides protection for public servants speaking politically in all circumstances. However they did find that public servants do have the right to make political comment, including on social media. There are limitations on what public servants can do, and this decision has also made those limitations a bit clearer.

 

The judgement of Justice Edelman (pp. 60-80) provides some useful detail on this, which we’ve extracted below.

 

Public servants can make political comment – the issue is what is acceptable comment

 

[182]

Given this history and context, s 13(11), when read with s 10(1)(a) and the other APS Values, does not impose behavioural obligations that preclude a public servant from making political comment on social media.

 

Rather, they support an interpretation of s 13(11) that creates a boundary, albeit ill-defined, between acceptable expression of political opinions and unacceptable expression of political opinions.

 

Taking into account that a public servant is intended to be able to take part in their political community, that boundary will only be crossed when comments sufficiently imperil the trust between, on the one hand, the APS and, on the other, Parliament, the executive government, or the public.

 

An assessment of when that trust will be sufficiently imperilled will depend upon all the circumstances.

 

Six factors to assess whether trust in breached

 

[183]

Although all circumstances are relevant, there are six factors of particular significance to any assessment of whether the relevant trust is sufficiently imperilled:

  1. the seniority of the public servant within the APS;
  2. whether the comment concerns matters for which the person has direct duties or responsibilities, and how the comment might impact upon those duties or responsibilities;
  3.  the location of the content of the communication upon a spectrum that ranges from vitriolic criticism to objective and informative policy
  4.  whether the public servant intended, or could reasonably have foreseen, that the communication would be disseminated broadly;
  5.  whether the public servant intended, or could reasonably have foreseen, that the communication would be associated with the APS; and
  6.  if so, what the public servant expected, or could reasonably have expected, an ordinary member of the public to conclude about the effect of the comment upon the public servant's duties or responsibilities

 

Some guidance about anonymity

 

[184]

In some cases, all six factors could point strongly towards a breach of s 13(11) by behaviour that imperils the trust protected by that sub-section, despite the communication being anonymous. An extreme example might be if a senior public servant makes an anonymous tweet to a large number of people where his identity is easily ascertainable and intended to be ascertained, and in the tweet he makes vituperative criticisms of government policy in his department and represents that he and others should aim to frustrate that government policy.

 

This example is sufficient to reject Ms Banerji's submission that, on the proper interpretation of s 13(11), anonymous public communications can never lead to a contravention of s 13(11).

 

[185]

However, I do not accept the Attorney-General of the Commonwealth's submission that a public servant's attempt at anonymity could only be relevant, if at all, to determining the appropriate sanction. A hypothetical example, adapted from oral submissions, involving an intended private communication can be used as an analogy to illustrate why intended anonymity is a relevant matter in determining breach of s 13(11). Suppose that a public servant, even an extremely senior public servant such as a Departmental Secretary, expressed vitriolic but cogent criticism of government policy implemented by her department. The criticism is expressed privately to her spouse after work. She might be aware of a reasonable possibility that her spouse might subsequently tweet that criticism. And there might also be a possibility that members of the public would associate the criticism with the Departmental Secretary. But despite these possibilities, it is hardly conceivable that the private communication could have sufficient impact upon the APS Values to amount to a contravention of s 13(11). It is highly unlikely that unintended public repetition of the private comment, even if public repetition were known to be a reasonable possibility, could have a major impact upon any aspects of the trust that underlies the value in s 10(1)(a) concerning the apolitical, impartial and professional nature of the APS.

 

[186]

The intended anonymity of a public communication on social media can militate against the impairment of trust in the same way as the intended private nature of the communication, at least where anonymity is intended to avoid attribution to the APS and where the statement does not otherwise impair accountability. In other words, just as it is relevant that political comment that is later publicly attributed to a public servant was made privately, so too it can be relevant that political comment made in a more public forum was made anonymously so as not to be associated with the public service. To reiterate E70. though, anonymity is only one factor to be considered in the context of the APS Value in s 10(1)(a). The substance of the comment might be such as to imperil the relationships of trust even if there is only a remote possibility of it being generally attributed to the public servant or the public service. A comment might also require assessment of other APS Values such as the sensitivity of the APS "to the diversity of the Australian public".