KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
COMCARE APPELLANT
AND
MICHAELA BANERJI RESPONDENT
Comcare v Banerji
[2019] HCA 23
7 August 2019
C12/2018
ORDER
1.Appeal allowed.
2.Set aside the decision of the Administrative Appeals Tribunal made on 16 April 2018 and, in its place, order that the reviewable decision of 1 August 2014 be affirmed.
3.The respondent pay the appellant's costs of the appeal.
Representation
B J Tronson for the appellant (instructed by Australian Government Solicitor)
R Merkel QC with C G Winnett and C J Tran for the respondent (instructed by Lander & Co)
S P Donaghue QC, Solicitor-General of the Commonwealth, and C L Lenehan with J D Watson for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
M G Sexton SC, Solicitor-General for the State of New South Wales, with F I Gordon for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor's Office (NSW))
C D Bleby SC, Solicitor-General for the State of South Australia, with L Gavranich for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor's Office (SA))
J A Thomson SC, Solicitor-General for the State of Western Australia, with N T L John for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor's Office (WA))
Australian Human Rights Commission appearing as amicus curiae, limited to its written submissions
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Comcare v Banerji
Constitutional law (Cth) – Implied freedom of communication on governmental and political matters – Where Australian Public Service ("APS") Code of Conduct ("Code") included requirement in s 13(11) of Public Service Act 1999 (Cth) that employees behave in way that upholds APS Values and integrity and good reputation of APS – Where APS Values in s 10(1) of that Act included that APS is apolitical, performing functions in impartial and professional manner – Where Agency Head empowered by s 15(1) of that Act to impose sanctions on employee found to have breached Code, including termination of employment – Where employee of government Department published tweets critical of Department, its employees, policies and administration, Government and Opposition immigration policies, and members of Parliament – Where employment with Commonwealth terminated for breach of Code – Where employee claimed compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) for "injury", defined to exclude injury suffered as result of reasonable administrative action taken in reasonable manner in respect of employee's employment – Whether ss 10(1), 13(11) and 15(1) of Public Service Act impose effective burden on implied freedom – Whether burden on implied freedom justified – Whether impugned provisions for legitimate purpose – Whether provisions suitable, necessary and adequate in balance.
Words and phrases – "adequate in its balance", "anonymous", "apolitical", "APS Code of Conduct", "effective burden", "impartial", "implied freedom of political communication", "integrity", "legitimate purpose", "necessary",…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Comcare v Banerji
Sign in free to access the full text
Details
AGLC
Comcare v Banerji [2019] HCA 23
Case
[2019] HCA 23
Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the High Court of Australia by Comcare against a decision of the Administrative Appeals Tribunal. The dispute arose from the termination of employment of an Australian Public Service employee, Ms. Banerji, for breaching the Australian Public Service (APS) Code of Conduct. Ms. Banerji subsequently claimed compensation for an injury under the Safety, Rehabilitation and Compensation Act 1988 (Cth), arguing her termination was not reasonable administrative action due to an infringement of the implied freedom of political communication.
The central legal issue before the High Court was whether certain provisions of the Public Service Act 1999 (Cth) – specifically those relating to upholding APS Values, maintaining the integrity and good reputation of the APS, and empowering agency heads to impose sanctions – imposed an unjustified burden on the implied freedom of communication on governmental and political matters. This question was framed within the context of whether the termination of Ms. Banerji's employment, for publishing critical tweets about her department, government policies, and parliamentarians, was lawful.
The High Court reasoned that the impugned provisions of the Public Service Act did not impose an unjustified burden on the implied freedom of political communication. The Court found that the requirement for APS employees to behave in a way that upholds APS Values, including impartiality and professionalism, and to maintain the integrity and good reputation of the APS, served legitimate purposes. The Court determined that these provisions were reasonably appropriate and adapted to achieving those purposes, and therefore, the termination of Ms. Banerji's employment was not rendered unlawful by reason of an infringement of the implied freedom.
Consequently, the High Court allowed the appeal, set aside the decision of the Administrative Appeals Tribunal, and affirmed the original reviewable decision. The respondent was ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the decision of the Administrative Appeals Tribunal made on 16 April 2018 and, in its place, order that the reviewable decision of 1 August 2014 be affirmed.
3. The respondent pay the appellant's costs of the appeal.
Background
Background to the litigation
KIEFEL This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") removed into this Court pursuant to s 40(1) of the Judiciary Act 1903 (Cth) on the application of the Attorney-General of the Commonwealth (intervening). The question for decision is whether, as the Tribunal held[1], ss 10(1), 13(11) and 15(1) of the Public Service Act 1999 (Cth) as at 15 October 2012 ("the impugned provisions") imposed an unjustified burden on the implied freedom of political communication, with the result that the termination of the respondent's employment with the Commonwealth for breaching the Australian Public Service ("APS") Code of Conduct was not reasonable administrative action taken in a reasonable manner with respect to her employment within the exclusion in s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Compensation Act"). For the reasons which follow, the impugned provisions did not impose an unjustified burden on the implied freedom of political communication, and the termination of the respondent's employment with the Commonwealth was not unlawful.[1]Banerji and Comcare (Compensation) [2018] AATA 892 at [67], [119], [128].The facts The uncontroversial facts of the matter were as follows. On 10 April 2006, the respondent was offered and accepted employment as an ongoing APS 6 employee within the Ombudsman and Human Rights and Equal Opportunity Commission Section of what became the Department of Immigration and Citizenship ("the Department")[2]. She commenced work in that position on 29 May 2006[3]. At some time prior to 7 March 2012, she began broadcasting tweets on matters relevant to the Department, using the Twitter handle "@LaLegale"[4]. There were more than 9,000 such tweets, at least one of which was broadcast during the respondent's working hours[5], and many of which were variously critical of the Department, other employees of the Department, departmental policies and administration, Government and Opposition immigration policies, and Government and Opposition members of Parliament[6]. The Tribunal found[7] that "[s]ome of the tweets are reasonably characterised as intemperate, even vituperative, in mounting personal attacks on government and opposition figures".[2]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(3)].[3]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(4)].[4]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(13)].[5]Banerji and Comcare (Compensation) [2018] AATA 892 at [26]‑[27].[6]Banerji and Comcare (Compensation) [2018] AATA 892 at [8], [40] fn 3.[7]Banerji and Comcare (Compensation) [2018] AATA 892 at [109] (emphasis added). On 7 March 2012, the Workplace Relations and Conduct Section of the Department ("the WRCS") received a complaint from one of its employees, which was copied to the National Communications Manager, alleging that the respondent was inappropriately using social media in contravention of the APS Code of Conduct[8]. After reviewing the complaint, the Director, WRCS determined that the complaint did not contain sufficient material to proceed with a formal APS Code of Conduct investigation, and advised the complainant of his determination[9].[8]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(14)].[9]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(15)].
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, BELL, KEANE AND NETTLE JJ
GAGELER J
For similar reasons, the remainder of the respondent's further alternative contention should be rejected. As has been observed[76], due to the way in which the respondent conducted her case before the Tribunal, the respondent must be taken to have accepted that her conduct in broadcasting the "anonymous" tweets was conduct which failed to uphold the APS Values and the integrity and good reputation of the APS within the meaning of s 13(11), and that, but for the implied freedom, the sanction of dismissal was warranted. It is too late now for the respondent to be permitted to contend for the first time, as it were on ultimate appeal, that the penalty imposed on her did not accord to the nature and gravity of her contraventions of ss 10(1) and 13(11) or her personal circumstances. She must be taken to have accepted that they did and, consequently, that the penalty imposed was in accordance with those provisions and so within the limits set by the implied freedom.[76]See [27] above.Conclusion It follows that the appeal should be allowed. The decision of the Tribunal should be set aside. In its place, the reviewable decision of 1 August 2014 should be affirmed. The respondent should pay the appellant's costs of the appeal. This proceeding, styled as an appeal on a question of law from a decision of the Administrative Appeals Tribunal, was commenced in the original jurisdiction of the Federal Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) and was removed into the High Court under s 40 of the Judiciary Act 1903 (Cth). The background is fully described in the reasons for judgment of the plurality. Comcare and Ms Banerji agreed before the Tribunal that the termination of Ms Banerji's employment within the Department of Immigration and Border Protection was "reasonable administrative action taken in a reasonable manner in respect of [her] employment" within the meaning of s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) unless she could establish that the termination fell outside that description "having regard to the implied freedom of political communication"[77]. That agreement meant that the only question raised for the consideration of the Tribunal in reviewing the decision of the Comcare Review Officer, which had affirmed the denial of her claim for compensation under s 14 of that Act for mental injury arising out of her employment, was whether the provisions of ss 10(1)(a), 13(11) and 15(1)(a) and (3) of the Public Service Act 1999 (Cth) ("the PSA") operated to infringe the constitutionally implied freedom of political communication to the extent that those provisions purported to authorise the termination of her employment. The decision of the Tribunal, to set aside the decision under review and to determine instead that Ms Banerji was entitled to compensation, followed from its conclusion that the implied freedom of political communication was so infringed.[77]Banerji and Comcare (Compensation) [2018] AATA 892 at [12].
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, BELL, KEANE AND NETTLE JJ,
GAGELER J