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On 7 August 2019, the Full Bench of the High Court delivered its judgment in Comcare v Banerji [2019] HCA 23. The Court unanimously found that the Code of Conduct for APS employees to behave at all times in a way that upholds the APS Values, and the integrity and good reputation of the APS under the Public Service Act 1999 is constitutionally valid. The Court also held that the APS Values are attuned to the maintenance and protection of an apolitical public service that is skilled and efficient in serving the national interest.

What is the practical impact of this decision for APS employees?

APS employees must at all times behave in a way that upholds the APS Values. Also, depending on the circumstances of a case, an APS employee could breach the Code even if they make anonymous comments. For Code of Conduct decision-makers, you need to follow your agency’s subsection 15(3) procedures and ensure any sanction is proportionate to the proven misconduct. However, you are not required to take into account the implied freedom of political communication when making a decision for a breach of the Code.

A brief history of the case

In the period 2006 to 2012, Ms Banerji, an employee of the then Department of Immigration and Citizenship, tweeted approximately 9000 times under the handle "LeLegale". These tweets were largely posted in her own time and from her own device. Her tweets were critical of the Department and its immigration policies. After conducting a Code of Conduct investigation, the Department found Ms Banerji had breached the APS Code of Conduct.

Before the Department sought to terminate her employment, Ms Banerji sought an injunction to prevent the Department taking this action. In Banerji v Bowles [2013] FCCA 1052, Justice Neville said Ms Banerji did not have “the unfettered right” to make her political comments.

Ms Banerji then lodged a workers’ compensation claim under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). Ms Banerji claimed an aggravation of her underlying psychological condition as a result of the termination of her employment. Comcare accepted Ms Banerji had sustained an injury, but ultimately refused to pay her compensation on the basis that her injury was a result of "reasonable administrative action taken in a reasonable manner in respect of the employee's employment". Ms Banerji appealed this decision to the AAT which set aside Comcare's decision. The AAT found that sections 13(11) and 15 of the PS Act "unacceptably trespassed on the implied freedom of political communication”; therefore Comcare could not rely on the exclusion of "reasonable administrative action taken in a reasonable manner in respect of the employee's employment" to deny Ms Banerji compensation.

The High Court decision

The Commonwealth appealed the AAT decision to the High Court, who unanimously found that Ms Banerji’s termination of employment was not unlawful and she and was not entitled to compensation under the SRC Act.

The High Court stated that the relevant Public Service Act 1999 provisions that effectively placed a burden on the implied freedom of political communication were for a "legitimate purpose" consistent with the system of representative and responsible government in the Constitution.

Ms Banerji also argued the Code of Conduct did not apply to her tweeting activity because she tweeted under a pseudonym. However, a majority of the judges said there was no reason why anonymous comment could not result in a breach of the Code of Conduct or damage the reputation of the APS. The court also rejected Ms Banerji’s argument that decision makers needed to take into account the implied freedom of political communication when making considering alleged breaches of the Code of Conduct.

The judgments also referred with approval the APSC’s Making public comment on social media; a guide for employees.

For further guidance, you can contact the APSC’s Ethics Advisory Service on 02 6202 3737 or ethics [at] apsc.gov.au