Banerji v Bowles  FCCA 1052 (9 August 2013)
The Federal Circuit Court of Australia (Court) has left open the possibility for a public servant who criticised the government on her anonymous Twitter account to be dismissed from her employment. The Court rejected the public servant's application for an injunction preventing her dismissal from the Department of Immigration and Citizenship (the Department) and confirmed that there is no unfettered or unlimited right to political expression in Australia.
Ms Banerji is a public affairs officer employed by the Department. Ms Banerji used an anonymous Twitter account, using the name "@LaLegale" (which had more than 700 followers) and regularly made 'tweets' that were critical of Australia's immigration detention policies, security services at detention centres and both Government and opposition frontbenchers.
The Department appointed Ms White (a director of the company providing human resources services to the Department) to conduct an investigation into whether Ms Banerji's conduct gave rise to breaches of the Australian Public Service (APS) Code of Conduct and whether sanctions should be imposed. The investigation concerned not only Ms Banerji's use of Twitter, but also allegations that she engaged in outside employment (as a psychoanalyst) without the appropriate approvals.
While the investigation into Ms Banerji's conduct is still ongoing, Ms White proposed that Ms Banerji's employment be terminated for breaches of the APS Code of Conduct, namely:
- the comments made by Ms Banerji on Twitter demonstrated a failure to “behave with honesty and integrity” in breach of APS values and the Department's policies on media use; and
- Ms Banerji had engaged in outside employment without appropriate approval.
Ms Banerji applied to the Court seeking orders to prevent the Department from taking any adverse action against her. Ms Banerji argued that her tweets were simply an expression of political opinion and were protected by the constitutional right to freedom of political communication.
Justice Neville considered a number of issues, including whether he should grant an interlocutory injunction to prevent Ms Banerji's apprehended or imminent dismissal. His Honour found that, while previous workplace cases confirm that the risk of dismissal may be grounds for granting an interlocutory injunction, the application by Ms Banerji was premature because it was made before the Department's review into her conduct was completed and any final recommendations were made. Neville J refused to grant the injunction and noted that Ms Banerji will be adequately protected by other remedies if she is dismissed by the Department.
Neville J held that the unfettered right to political communication contended by Ms Banerji does not exist in Australia. His Honour referred to the judgment of Justice Kirby in Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 1999, which provided at page 282:
[T]his principle does not uphold an inflexible rule. Australian law does not embrace absolutes in this manner … Restrictions, imposed by law, for limited purposes (even where they may incidentally diminish completely uninhibited discussion of issues of government or politics) may yet be compatible with the Constitution. It is only if the law in question is inconsistent with the intended operation of the system of government created by the Constitution that the implied constitutional prohibition has effect.
Neville J discussed the ongoing jurisprudence of the High Court in relation to the implied right of political expression. His honour noted that previous decisions have confirmed the limitations to which Kirby J referred, such that, as with 'rights' generally, the implied right of political expression is not unbridled or unfettered. Even if there is a constitutional right of the kind for which Ms Banerji contends, it does not provide a licence to breach a contract of employment.
Neville J also found that, in any event, the High Court had confirmed earlier this year that:
- the right asserted here is 'not a personal right' – it operates as a restriction on legislative power and does so to support the constitutional imperative of the maintenance of representative government; and
- the Australian Constitution does not contain implied provisions similar to the First and Fourteenth Amendments of the Unites States' Constitution, or Article 5 of the German Constitution, both of which provide expressly for a right of freedom of expression (see Attorney-General for South Australia v Corporation of the City of Adelaide (2013) 295 ALR 197).
His Honour ultimately found that Ms Banerji's political comments tweeted while she remains (a) employed by the Department, (b) under a contract of employment, (c) formally constrained by the APS Code of Conduct, and (d) subject to departmental social media guidelines, are not constitutionally protected.
The Australian Constitution does not explicitly protect freedom of expression or political communication, but two seminal High Court decisions in 1992 confirmed that an implied freedom of political communication exists as an incident of the system of representative government established by the Constitution (see Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106). The kind of right or freedom to political communication claimed by Ms Banerji is arguably most similar to the Brennan J’s reasoning in Nationwide News Pty Ltd v Wills, which discussed the “freedom of the Australian people to discuss governments and political matters” (at page 50-51).
The precise scope and limits of the implied freedoms has been the subject of High Court debate for some time. However, the High Court has maintained this freedom is not a personal right and is not unfettered or limitless. The decision in this case suggests that a private contract (eg. employment contract) can limit the implied Constitutional freedom of political communication. It remains to be seen whether that view will be shared by the superior courts. In the meantime, this case certainly gives cause for public servants to reconsider their use of Twitter, and other social media tools, for political debate.
The decision is available at: http://www.austlii.edu.au/au/cases/cth/FCCA/2013/1052.html
James Pearse is a lawyer at Allens.