Mark Cox, Director and Madeleine Brown, Associate at MDC Legal examine Comcare v Banerji [2019] HCA 23, where the High Court ruled in favour of the employer.
A public servant sacked for publishing 1000’s of anonymous tweets criticising her employer has failed in her bid to challenge her dismissal as a breach of the implied freedom of political communication.
Ms Banerji worked as a public affairs officer for the Department of Immigration and Citizenship (Department) from 2006 until her dismissal in 2013.
In 2011, Ms Banerji began anonymously tweeting under the handle ‘@LaLegale’. LaLegale’s tweets were critical of the Department, members of Federal Parliament, the government and the opposition and their respective policies in relation to immigration.
In September 2013, the Department terminated Ms Banerji’s employment for breaches of her obligations under the Public Service Act 1999 (Cth) (PS Act) and the Australian Public Service Guidelines (APS Guidelines).
Under the PS Act and the APS Guidelines Ms Banerji was required to:
- behave in a way that upholds the Australian public service (APS)’s values, including that the APS is apolitical and impartial; and
- not make public comment that is, or is perceived as:
- compromising her ability to fulfil her duties professionally in an unbiased manner; and
- harsh or extreme in its criticism of the government, a member of Parliament, a political party or a political party’s policies.
Ms Banerji claimed that the requirements of the PS Act and the APS Guidelines were unconstitutional and invalid because they infringed on the implied freedom of political communication.
The High Court unanimously held that the requirements of the PS Act and the APS Guidelines were valid as they were reasonably necessary and adequately balanced to achieve the legitimate purpose of ensuring that the public service remains apolitical and impartial.
In addition to confirming the broad restrictions on public servants’ political expression, the High Court’s decision has broader implications for employers and employees in both the public and private sectors.
Anonymity is no protection to employees
As part of her claim, Ms Banerji argued that the requirements of the PS Act and the APS Guidelines did not apply to anonymous posts.
The High Court rejected Ms Banerji’s argument, holding that even anonymous posts risk the author’s identity being revealed, which is exactly what happened in this case. The High Court found that where the author’s identity is later discovered, the fact that the posts were made by an employee of the particular employer is bound to damage the integrity and good reputation of that employer.
In any event, the High Court confirmed that posts that are overly critical of the employer or its policies damage the good reputation of the employer even if the author remains anonymous.
No personal right to “free speech” in Australia
The High Court confirmed that unlike in the United States there is no personal right to free speech in Australia.
In Australia, there are limits on the legislative power of the Parliament to make laws that place an unjustified burden on the implied freedom of political communication. A restriction on legislative power is different to a personal right.
The distinction is important. As stated by the majority of the High Court in this case, this means that:
even if a law significantly restricts the ability of an individual or a group of persons to engage in political communication, the law will not infringe the implied freedom of political
communication unless it has a material unjustified effect on political communication as a whole
In practical terms, this confirms that while employees are entitled to their opinions, they need to consider carefully their contractual and or statutory obligations to their employer before posting online.
There are protections regarding political communications in the employment context, most notably section 351 of the Fair Work Act 2009 (Cth), which prohibits an employer taking adverse action against a person because of their political opinion. This particular provision is relatively untested, though this may change if the Israel Folau case proceeds to a hearing.
In contrast to the outcome in Banerji, the Fair Work Commission upheld the unfair dismissal claim in Ms Creina Murkitt v Staysafe Security T/A Alarmnet Monitoring [2019] FWC 5622 (16 August 2019). There the employee had posted a vent against new owners of her employer, saying they don’t care for their clients or employees, which Commissioner Platt found was a valid reason for the termination, but held the termination was disproportionate and harsh because the post was a single event, and because of her 15 years’ service, lack of past performance problems and her medical condition. However, Commissioner Platt declined to order any compensation holding that if she wasn’t dismissed, she would not have continued in her employment anyway, and because she got workers compensation payments.
Mark Cox (BA LLB Hons, University of Melbourne) leads the specialist employment law team at MDC Legal. He has over 19 years practice, mainly in industrial, workplace and employment law. In previously worked in a commercial litigation firm, then as a senior associate of a national firm, and as Principal Solicitor of the Employment Law Centre. Mark is a well-regarded practitioner in workplace relations law, named as a “leading lawyer” in Doyle’s Guide 2014, 2015, 2016, and “market leader” in 2017, 2018 and 2019. In addition to providing strategic and front end advice and implementing employment contracts, policies and procedures, Mark has conducted litigation and acted as counsel in several jurisdictions on “both sides of the fence” in a wide variety of matters, including injunctions and restraint of trade matters, protected industrial action, contractual claims, general protections and unfair dismissal claims, and bullying and discrimination claims. You may connect with Mark by email: markcox@mdclegal.com.au or on LinkedIn 
Madeleine Brown (BA LLB, University of Western Australia) is an Associate at MDC Legal. Prior to joining MDC, Madeleine had a varied professional background, which included working as a paralegal in private practice, volunteering in the community sector and most recently as a lawyer at a peak employer union. As a lawyer at MDC, Madeleine assists clients with tailored solutions across a wide range of employment law matters from unfair dismissal, general protections, and restraint claims to assisting employers conducting disciplinary and performance management procedures, drafting contracts and interpreting modern awards and enterprise agreements. You may connect with Madeleine by email: madeleinebrown@mdclegal.com.au or on LinkedIn
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