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High Court Decision handed down in Comcare v Banerji [2019] HCA 23


The High Court of Australia has handed down its verdict in the matter of Comcare v Banerji. Read our previous blog here for a summary of the case.

The High Court ultimately ruled that the APS Code was “proportionate to its purpose of maintaining apolitical public service” and favoured Comcare’s appeal. This means that Ms Banerji’s dismissal was not unlawful.

Ms Banerji’s case for free speech was earmarked by political analysts and media outlets to be a ‘landmark’ case. The decision reached by the High Court of Australia presents major implications for public sector employees who choose to communicate their political opinions on social media.

Implications of the High Court’s Decision

Silencing Public Servants from Political Discourse

The High Court’s judgment clarified that government policies including the APS Code of Conduct affects the political engagement of public servants outside their employment. Arguably, this decision has empowered federal, state and local governments to limit the ability of around 2 million public servants to critically comment on political discourse.

Had the High Court’s decision been in favour of Ms Banerji, it may have limited the scope of government departments intervening, or in this case investigating, the political lives of their public servants.

This decision also reinforces the idea that public servants cannot separate their personal political opinions from the apolitical views expected of an employee of a government agency. Public servants now have clear restrictions about the comments they can make in terms of political commentary and critique.

Implications for Private-Sector Employees

While this decision does not apply to private sector employment, there may still be cascading effects. For the private sector, restrictions on political communication cannot be enforced, as employees do not represent the government in the same way that public workers do. However, the concern that employers can have control over an employee’s private views lingers, no matter the sector.

Anonymity will not protect your Freedom of Speech

Ms Banerji’s lawyers argued that her termination was unfair as her Twitter account did not disclose that it was operated or endorsed by a member of the public sector, and therefore could not bring the APS into disrepute.

The High Court held that the relevant provisions of the Public Service Act requiring employees to uphold APS values, including impartiality, is relevant to all public servants and still applies if a comment is made anonymously, or under a pseudonym. The Court held that “damage to the good reputation of the APS is apt to occur” when critical comments concerning a government department’s administration are made, “even if the author’s identity and employment are never discovered.” The High Court noted that “as a rule of thumb, anyone who posts material online, particularly on social media websites, should assume that, at some point, his or her identity and the nature of his or her employment will be revealed.”

Although Ms Banerji tweeted from a private device, mostly outside of work hours and did not disclose any confidential Department information, the High Court has confirmed in this case that anonymity does not protect the identity of public servants and reiterates that all public servants, using a pseudonym or not, are restricted on their implied right to freedom of political communication, and must uphold the apolitical values of the APS.

If you have any concerns about the validity of the terms in your employment contracts or Codes of Conduct, please do not hesitate to contact our Managing Associate, Julia Adlem, at j.adlem@pacelawyers.com, or call her or one of our friendly employment lawyers on: 08 8410 9294.