Comcare v Banerji

[2019] HCATrans 51

Replacement Transcript

[2019] HCATrans 051

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C12 of 2018

B e t w e e n -

COMCARE

Appellant

and

MICHAELA BANERJI

Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 21 MARCH 2019, AT 9.47 AM

(Continued from 20/3/19)

Copyright in the High Court of Australia

KIEFEL CJ:   Yes, Mr Solicitor.

MR BLEBY:   I addressed yesterday on the identification of the purpose of section 13(11), often a construction that connected the focus on integrity and good reputation with the objective of furthering responsible government.  I propose to say a few things on the extent of the burden, which we address from paragraph 37 of our written submissions, and that of course is relevant in particular to the second and third stages of proportionality testing. 

What we are looking at, as your Honour Justice Gageler described it in Brown at paragraph 188, is the incremental effect of the law on the real world ability of a person or persons to make or to receive communications which are capable of bearing on electoral choice.

BELL J:   Mr Solicitor, I am sorry to interrupt but just before you move to the extent of the burden can I ask you one thing arising from paragraph 6 of your outline.  The Commonwealth’s principal argument focuses on section 13(11) and its intersection with section 10(1)(a).

MR BLEBY:   Yes.

BELL J:   It says the inquiry, in essence, comes to a stop at that point.

MR BLEBY:   Yes.

BELL J:   Do you disagree with the principal way that the Commonwealth puts its submission in that respect?

MR BLEBY:   I do not disagree, your Honour; I expand only in this way.  Sections 15(3) to (5) are directed not at sanctions but, if you look for example at subsection (3):

An Agency Head must establish procedures for determining whether an APS employee in the Agency has breached the Code of Conduct.

. . .

(4)The Commissioner must issue directions in writing for the purposes of subsection (3).

(5) . . . to ensure . . . ready access to the documents –

I am going to come to in a minute the integers of the burden are integers of what I might describe as content and process.  That has been touched on in particular by New South Wales that, insofar as 15(3) to (5) actually establish procedures that surround the substantive burden created by 13(11), they are relevant to the extent of the burden.  So it is not a disagreement; it is perhaps just an expansion of what must be necessarily incorporated in that primary burden.

BELL J:   But the essential argument that the Commonwealth puts is that one is not in the area of looking at the exercise of the discretion; when one looks at this scheme a person either contravenes the Code or they do not.  That is an evaluative judgment and the Commonwealth seeks as its principal argument, as I understand it, to say one looks at section 13(11) and 10(1)(a) and determines the burden at that point and the Commonwealth would submit that it is justified.

MR BLEBY:   As to that, we are at one with the Commonwealth.

BELL J:   Thank you.

MR BLEBY:   What follows in the submission I am about to make should be viewed through that prism, with respect.

BELL J:   I understand.

MR BLEBY:   Now, there is, of course, no complete prohibition on public political criticism.  The Commonwealth made submissions on the connotations of the word “upholds” in section 13(11).  We adopt those submissions and we would also just compare the words in section 13(11) of “behave in a way that upholds” as applies to “An APS employee” in section 12 which provides that “An Agency Head must uphold and promote the APS Values”.  What the precise distinction is can probably only be worked out in the particular case but it at least suggests a different level of responsibility or connotation that sits within – because there is a specific drafting difference.  But, what does that mean in a particular case? 

As the Commonwealth submitted, that is a matter of judgment and the content – I withdraw that – the integers of that judgment ‑ and this is where I was driving part of my answer to your Honour Justice Bell ‑ are integers of content and process.  So, the content of the judgment, if you like, are matters as the Solicitor for the Commonwealth described what is the agency in which the person is employed, what level of seniority and responsibility do they have, what is said, the connection with their particular responsibilities and the forum, for example.

Those matters will influence the particular behavioural requirements that are needed for upholding the various APS values in a particular case.  At paragraphs 50 through 56 of our written submissions, we address what I would call the process of the necessary judgments that inform the extent of the burden.  We set out those elements from paragraph 51 and the other parties have been through them.  These effectively amount to a comprehensive description of notice, due process and review and that is why I incorporate sections 15(3) through (5) into this integer of the burden. 

Perhaps the best way of explaining that is to contrast it with the process element that was quite determinative in Brown because, of course, in Brown the vagueness of the defining terms combined with the fact that a police officer had to make an instant quantitative judgment about the existence of a statutory boundary made the operation and practical effect of the resultant burden, which was effective banning from the site for a number of days, disproportionate to the purpose.  In that way, the process through which the police officer had to go, if you like, was an integer of the burden.  Here, it is quite a different, much more comprehensively and reviewable prescribed process. 

Briefly, on the importance of purpose, that, of course, is relevant to the third stage of the justification analysis.  We address that from paragraph 57 of our written submissions, and we highlight at paragraphs 63 to 65, and I will not take the Court through that, but the parliamentary statements of the Parliament’s elevated expectation of the public service and the accountability of agency heads is part of the responsible government structure that was being reformed by the Act.

But, in any event, of course, the importance of responsible government as the doctrine underlying the constitution as a whole does not need a great deal of exposition, in my submission.  I would simply draw the Court’s attention to note your Honour Justice Gageler’s description of responsible government in McCloy at paragraphs 107 to 108 and also the passages that the Commonwealth took the Court to in McManus v Scott‑Charlton which is in volume 5, tab 31.  I do not propose to revisit those passages.

So, when it comes to holding up the extent of the burden against the importance of the purpose for the balancing exercise, we are weighing burdens imposed by prescriptions for judgment – being prescriptions of content and process – with a purpose that is directed at furthering the doctrine of responsible government.  By allowing a full range of considerations to inform the necessary judgment and attaching to that judgment requirements of notice, due process and review the Act is prescribing a system that, in our submission, is very closely tailored to the purposes that are apparent in section 13(11). 

Can I finally just say something about anonymity?  The Commonwealth Solicitor‑General has described anonymity as potentially

complex and gave useful examples of how anonymity in fact arises as a matter of degree.  Bearing in mind that section 13(11) is particularly concerned with integrity and good reputation of the APS in its pursuit of responsible government, the fact that there can be degrees of anonymity may – if, perhaps, we put to one side temporal considerations for the moment – have some bearing on the impact on reputation of the APS.  Compare complete anonymity with a partial anonymity and how different scenarios may affect reputation.

But, of course, not only can – sorry, I will withdraw that.  Integrity, on the other hand, has an absolute quality and not only can anonymity not avoid affecting the integrity of the APS where a publication is capable of undermining that integrity, but to the contrary, attempted anonymity by a public servant undermines responsible government even further. 

Anonymity, in the context of integrity is best understood, perhaps, not so much as a fact or even a complex one, but nothing more than an intention and a key feature of responsible government is accountability.  So an attempt at anonymity can only be an attempt to avoid that, to avoid accountability and, therefore, undermine responsible government. 

May it please the Court.

KIEFEL CJ:   Thank you, Mr Solicitor.  Solicitor‑General for Western Australia.

MR THOMSON:   May it please the Court.  We begin by expressly adopting the same assumption that was made by the learned Solicitor‑General for New South Wales at the outset of his oral submissions.  That is, the assumption that the termination of the respondent’s employment was valid, subject to the question of whether the legislation was made without power due to the implied freedom of political communication. 

I propose to commence by emphasising two factual matters of the present case which have, we say, an important bearing upon the implied freedom of political communication.  First, the respondent’s public statements contain criticism of her own department, the Department of Immigration and Citizenship, and they were public statements protesting about offshore processing of asylum seekers.  They were not public statements about the government or ministers which related to matters outside the sphere of her own department.  So that is one important factual matter we say. 

GAGELER J:   Why is it important?

MR THOMSON:   Because when we come to analysing the nature of what it means to be apolitical our submission is that apoliticality in this context means something in relation to the behaviour of the employee in that capacity and that capacity relates to the employee’s employment in a particular department.

GAGELER J:   Why are we examining it at the level of the particular employee?

MR THOMSON:   Because the obligation in section 13(11) is an obligation upon an employee about how that employee behaves and whether that employee’s behaviour, in the employee’s capacity as an employee, upholds the value of the APS, namely, apoliticality.

GAGELER J:   Is constitutional validity to be determined on a case by case basis then in your submission?

MR THOMSON:   No.

GAGELER J:   Then why are we looking at the facts?

MR THOMSON:   This is to emphasise why – this point and the second point that the criticisms that are generally made here are proffered without an objective basis is to identify the way in which the question about legislative power arises and it arises in this way. 

The implied freedom of political communication is relied upon by the respondent to say that Parliament cannot make laws sanctioning public statements which are conclusory and emotive and which are about her own department.  That is the narrow way of expressing the question of legislative power.

So the respondent is not relying upon the implied freedom to say that Parliament cannot make laws which prevent reasoned debate about matters of government policy or about matters which are unrelated to her employment.  I have emphasised the two particular factual matters in order to crystallise and narrow the question about legislative power.

To make one other point, and that is this, the significance of characterising the respondent’s statements as subjectively emotive and conclusory is that they are less deserving of the protection by the implied freedom.  The prohibition of such statements does not strike at the heart of why there is an implied freedom, which was stated in Lange and repeated by the plurality in Unions (No 2), which is that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters. 

In a sense, what I have just said about subjectively emotive criticism and conclusory statements corresponds with that comment made in the Canadian case about petty dissonance, so again, to try and crystallise the narrow legislative question that arises in this case. 

There are five points which we submit the Court should accept concerning the scope of the relevant provisions contained in sections 10A, 13(11) and 15, as they stood at the relevant time.  First - and this is the point I have already just mentioned in response to his Honour Justice Gageler - the question about being apolitical and upholding the value of being apolitical we say arises in the context of the behaviour of the particular employee and, therefore, what it requires is that a public servant should not be making statements that are of a political nature about matters that arise in the course of his or her employment in the department.

So it does not prevent, for example, a public servant making comments about other matters of government policy outside the sphere of his or her employment and we give an example of perhaps an employee of the Defence Department making comments about health funding.  That is not to say that it is not possible for the statements of an employee of one department to have an effect upon the integrity and good reputation of the Australian Public Service.  That would depend upon the seniority of the public servant.  That is a different and separate requirement that arises in section 13(11).

GORDON J:   I put to the Commonwealth Solicitor‑General yesterday 13(1) to (4) deal with conduct of APS employees in the course of their employment, 13(11) is broader, is it not?

MR THOMSON:   Indeed, we accept that it is broader but it is not so broad as to mean that a public servant in the Commonwealth Public Service cannot make statements at all about any political matters.  So, the riposte that has been made by the respondent is that this has a cleansing effect on the political opinions of public servants or that it creates silent members of society, we suggest that that is not a correct apprehension of the operation of these provisions.

BELL J:   Mr Solicitor, does WA support the Commonwealth in the contention that the burden under 13(11) understood in the context of 10(1)(a) in all its operations is justified?

MR THOMSON:   Yes.  Can I make these comments about the interaction of section 15 and section 13(11) and how they stick together?  Section 15, particularly section 15(1) is not relevant at all to the existence and extent of the prohibition on political communications and it cannot alter the purpose of the prohibition.  For that reason, the discretion does not relate to the scope of the prohibition and political communications and, consequently, we do agree with the Commonwealth that the first and second of the McCloy questions can only be answered by reference to section 13(11) read with section 10A.

EDELMAN J:   Would it make any difference then if section 15 provided for, say, criminal consequences in terms of imprisonment for any violations of section 13(11)?

MR THOMSON:   Yes, it would.  I was going on to just elaborate – section 15 is about the effect of the prohibition being breached.  The effect of a breach of the prohibition is relevant to whether the prohibition is compatible with the implied freedom.  That is because the size of any applicable sanction will dictate the deterrent or dampening effect which a prohibition has upon political communications which are actually made.  If there is no sanction the deterrent with a dampening effect of a prohibition might be slight.  If the sanction was imprisonment, on the other hand, the dampening effect would be substantial. 

In this case, section 15 does not provide for criminal sanctions but it does provide for a range of sanctions which affect a public servant’s employment.  So, it is relevant for the question of compatibility testing because of the dampening effect that it may have. 

Can I also make some comments in this context about Wotton and the observations that were made in Wotton about the discretion?  The observations in Wotton at paragraphs 30 to 32 were observations about a discretion which could affect the scope or the prohibition against political communications.  It was a discretion in that case to commit a prisoner to communicate on political topics and so it is, therefore, somewhat different in its scope to the discretion of section 15 in this case. 

I should also make this observation about Wotton.  At the time that Wotton was decided there were two questions in the Lange analysis, not three questions in the McCloy analysis, so that the second and third questions of the McCloy analysis were wrapped up in the second question of the Lange analysis.

Now, the observations made in Wotton at paragraph 31 were really observations about the exercise of the discretion directed to the legitimate purpose question not the compatibility question.  The observations made at paragraph 32 which were about the application of the discretion may have been more about the third question but it is important to realise that the discretion in Wotton was something that could, in fact, affect the extent and the burden of the prohibition.

I think I have dealt with the first two out of the five points that I put in my oral outline of submissions about the operation of sections 10, 13 and 15.  Another point we would make about the operation of the value of acting apolitically is this:  that what it represents is a restriction on expressing a preference about political matters that have been the subject of decision by elected representatives.  What it does not do is prevent the communication of the political positions and the respective advantages and disadvantages of positions without necessarily expressing a preferred position.  For that reason we think that the burden therefore is of a more slight nature than preventing any form of political communication.

The fourth point that we make is the point about the fact that the requirement applies at all times – the requirement of upholding the apolitical values of the APS as well as the requirement of acting with integrity and upholding the good reputation of the APS.  We say that it has to be at all times because it would catch up things like unconnected criminal conduct so that if an APS employee was engaged in some form of serious criminal transaction then that would be something that would be relevant to upholding the integrity and good reputation and therefore that demonstrates why it has to be at all times.  Therefore, if you accept that, then it applies equally to anonymous statements which might then later be discovered.  The fifth point that we make in our oral outline of submissions relates to the interaction of sections 13 and 15 and the nature of the sanctions.

Having made those general comments about the way in which the legislation operates, we then can turn to the questions in the McCloy analytical framework.  We would make the submission that the first question is resolved without reference to section 15, because you have to look at the scope and the extent of the burden upon the political communication.  We make the submission that, having regard to the way we have suggested the provisions operate, the scope and the extent of the burden is actually quite a small burden. 

We say that because of the first point that we make, that it does not prevent communications about matters outside the sphere of the employee’s department and it also does not prevent communication by the employee about matters within the sphere of the employee’s department so long as they are communications about the objective advantages or disadvantages of departmental policies without it going to the point of promoting or criticising those policies.  Therefore we say that there is no effect of making APS members silent members of society or cleansing them of political opinion.

The second question in the McCloy framework is the legitimacy of the purpose.  We make the point that an apolitical public service operating with integrity and a good reputation is necessary for a government to govern.  There are three things that we say about that in a very broad sense.  First, unless there is apoliticality in a public service then it may lead to loss of public confidence in the execution of governmental policies that have been the basis for the elected representatives being elected.  It may also lead to the elected representatives losing confidence in the public service, because they have to entrust the execution of their policy decisions to the public service, so there are two types of loss of confidence in the public service:  the loss of the public having confidence in the service and also the loss of confidence by the elected representatives.

We also point out that the integrity and good operation requirement of the provisions is important because it prevents, perhaps, senior members of one part of the public service criticising policies of another department and there does need to be that cross‑type of – sorry, the trust in the entirety of the public service.  So, we say that there is no difficulty about the legitimacy of the object and that, in the context, the burden is relatively slight. 

The third question on the McCloy analysis is whether the measures which have been adopted, to achieve the legitimate purpose, are compatible with the implied freedom.  It is at that point that section 15 becomes primarily relevant.  Our submission is that the wide range of available sanctions in section 15 meant that the particular measure that could be applied by a departmental head or agency head was a matter within the discretion of that departmental head or agency head.  Now, it is not a discretion about the extent or burden – sorry, the extent of the burden upon political communications, it is a discretion about the dampening effect that enforcing the prohibition might have. 

Our submission is that if the range of sanctions will be available in at least one or more cases so that you can say that termination is a justifiable sanction in at least one or more cases, then the legislation is constitutionally valid.  The question, then, of whether the particular penalty is a good penalty or not in the actual individual case is a matter of merits review.  So, we think that is supported by what was said in Wotton, at paragraph 32.  That means that it is unnecessary to consider whether, in each case, the deterrent or dampening effect of a sanction could be disproportionately too high for the purpose of preventing political communications in the particular case. 

The question of constitutional validity relates to whether the range of sanctions could ever be used.  We say that it is manifestly obvious that there might be certain types of political communications where the sanction of

termination is abundantly appropriate.  If you reach that view, then the legislation is constitutional and the only thing that might need to happen is that if there has been a harsh penalty imposed then there might be review of that penalty on a merits basis but that is not a matter for this Court.  Those are our submissions, unless there is anything further?

KIEFEL CJ:   Thank you, Mr Solititor.  Yes, Mr Merkel.

MR MERKEL:   If the Court pleases, can I deal with one or two factual matters at the outset.  It is common ground and an agreed fact that the tweets of the respondent did not reveal her name or that she was a public servant.  At core appeal book page 12, paragraph 8, she tweeted under the handle “LaLegale”.  At paragraph 9 of the Tribunal decision, some examples of the tweets were given, but I will take your Honours to more detail of them to show what they in fact constituted.

The immediate context of her tweets would include the LaLegale Twitter profile page which said, “Lawyer.  Family Dispute Resolution Practitioner.  Teacher.  Journalist.  Canberra, Australia”.  That appears from the Comcare further book of materials at 57 and the profile page did not reveal her name or that she was a public servant.  There is nothing else in the immediate context of the tweets that revealed any link with the public service.

I do need to comment briefly at the outset to put to one side certain matters the Commonwealth had put.  The Commonwealth had said that when the respondent used Twitter on the disciplinary investigation, that suggested she was a public servant.  That is put in footnote 4 to the reply in the further materials at 129.

The tweet, which is at that page, was not in the batch of tweets for which she was investigated and for which she was found to be in breach.  In any event, it merely said:  is there anyone with experience in defending an allegation of a Code of Conduct breach which would not necessarily identify her as an APS employee?  Finally, what ultimately revealed the link between the respondent and LaLegale was the department’s use of its own resources to ascertain that she was the person behind LaLegale.

Could I go now to the relevant facts – and just to be quite clear, I am going to these facts as to the investigation, breach and process that was followed in the department in relation to the respondent purely as a useful example of the statute’s “practical effect and operation”, using the words in Brown of your Honour the Chief Justice and Justices Bell and Keane at paragraph 90.  We would say this is a good practical example of how the relevant sections operate in practice. 

Can I start at the Comcare further materials at page 47, which is the investigator’s report.  At paragraph 1 there is a referral, and a reference to “inappropriate postings.”  May I say this, the pathway that I am leading down is that essentially the tweets the subject of the breach, whilst they contain some tweets with extreme language, some tweets that were intemperate, the batch of tweets that formed the subject of the breach really were under the rubric of critical, being critical of government policy, government ministers and so forth.  I will take your Honours through this process, but that is - what really are under the rubric of inappropriate postings.  Then attachment B, which I will take your Honours to, it is at pages 57 to 76 of the further materials, is a snapshot of the tweets, indicating the author has opposing views ‑ ‑ ‑

KIEFEL CJ:   I am sorry, where is that, Mr Merkel?

MR MERKEL:   That is paragraph 2 at page 47, your Honour.

KIEFEL CJ:   At attachment B?

MR MERKEL:   Attachment B is at page 57 – but I will take your Honours to that, because they set out the tweets.  But again I indicate, they are put forward as a snapshot, as a representative example of what I will call the critical comments and communications of the respondent and they are fairly characterised as:

opposing views to that of the Government addressing issues associated with government policy and departmental programs such as immigration detention, processing of refugees and Irregular Maritime Arrivals (IMAs).

Some examples are at attachment B.  Then at 3, the observation is made that:

LaLegale has over 9000 tweets with many of her followers being from the journalistic and political arena.

Can I then go over the paragraph 16 where there is discussion in the investigator’s report:  

LaLegale’s twitter posts are often highly critical about the government, the Minister, immigration portfolio policy and DIAC’s Communications Manager, Mr Logan.  Some tweets do not separate personal views on policy issues and as such have the potential to affect the performance of Ms Banerji’s official duties in her communication tasks with the Ministers’ offices, the departmental executive and other stakeholders.

And then 17:

It is not appropriate for a DIAC employee to make unofficial public comment that is, or is perceived as harsh in its criticism of DIAC’s administration, of the government or a Member of Parliament.

Could I now go ahead to the snapshots which are attachment B which are at 57 of these materials.  I am not sure how familiar your Honours are with the tweeting process, and I may be a little inaccurate ‑ ‑ ‑

KIEFEL CJ:   I think some more than others is the answer to that.

MR MERKEL:   I think I am at the bottom of the barrel, your Honour, but I have tried to understand it a little.  So, this snapshot, where I think you have the handle at the top and then down at page 57 we have a tweet from someone who – Mr Burnside, who writes about Mr Morrison who is the Shadow Minister at the time, warning about a certain plan, making it ‑ ‑ ‑

NETTLE J:   Is that a sort of response to the LaLegale tweet at the top? 

MR MERKEL:   I think the way – again, I hesitate to sound knowledgeable, but I think that is just one tweet, your Honour, that appears to which LaLegale then responds at the top of the next page.  So, her response – so, where it says “@” with a cross through it, my understanding is that is a response.  And where it does not, it is an original tweet.  So, LaLegale, the respondent, sets out her observation. 

Then there is a next tweet from Scott Morrison, which is a tweet at large, to whoever picks up his tweets.  He was the Shadow Minister at the time.  And then there is a responding tweet at line 31 from the respondent talking about: 

Asylum seekers are not “illegal” at ‑

and so forth.  Then you have another tweet from Mr Morrison to which there is a reply at the top of page 59.  And then at line 23, when it has “LaLegale@LaLegale” she is initiating a tweet to the 600 or 700 people who appear to be following her and responding to her.  So, these are initiating tweets using her – to a hashtag set out at page 59.

And so it goes – your Honours will see a reference to tweeting to Barack Obama, but there is no doubt that the theme through these tweets are political comments and criticisms.  Just so your Honours get the sequence, at pages 63 and 64, the tweets that related to Mr Logan are set out.  Again, I may stand corrected, but to get the order of them, I understand it started with the tweet at the top of page 64 on 5 March.  That was the first tweet.  Then the second tweet was down at line 26 where LaLegale – so the first tweet is Mr Logan’s tweet, the second tweet at line 22 is the response of the respondent, then going back a page at 63, the third tweet ‑ ‑ ‑

EDELMAN J:   Sorry, the first tweet is the one beginning “Melbourne Uni”, is that right?

MR MERKEL:   Yes, that is right, and the second tweet is the respondent’s tweet, perhaps ‑ it must be Mr Dutton:

can now make up for deaths and agonies –

and so forth.  Then, the third tweet is Mr Logan’s response to the LaLegale tweet.  That is at line 28 at page 63, he says:

Give it a rest @Lalegale.

The fourth tweet in the sequence is by a person named at line 40 in response to Mr Logan and that is the tweet that was re‑tweeted by the respondent at her work desk which was the subject of its own ‑ ‑ ‑

GAGELER J:   Mr Merkel, there is a finding that there were 9,000 tweets.  Can we take the examples given by the Tribunal at paragraph 9 as being representative?

MR MERKEL:   No, your Honour, I think – again, I could be corrected if it were put forward as an agreed fact as representative.  So subject to being corrected I would understand that as the Tribunal’s example of tweets that were critical of government policy.  There is a lot of tweets here that are comments on political and government matters that are not at the – necessarily at the critical end.

BELL J:   Mr Merkel, at paragraph 109 the Tribunal finds:

Some of the tweets are reasonably characterised as intemperate, even vituperative, in mounting personal attacks on government and opposition figures.

That is the finding, is it not?  I am not just quite sure why we are being taken to the tweets.

MR MERKEL:   Your Honour, I will not take you to any more but the point of taking you to these, your Honour, is that what the Tribunal said were representative tweets were representative of her critical comments.  The finding your Honour took me to was a finding that was made and is accurate and not in any issue, not challenged by us.  The point I am seeking to make from the documents I am taking your Honours to is that when it comes to the breach decision which was based upon the investigator’s report, the breach was not just any particular tweet or any representative sample of tweets, it was the engaging in this whole process of critical conduct set out in the snapshot which is exhibit B of which there were many more which were not before the investigator.  So, that is as far as I take it.

The conduct found to be in breach is in the further materials at page 154, which is the decision‑maker’s notice of proposed breach, and at 154 in the first paragraph the person who made the decision ultimately was saying that the specific information is that:

you have been using Twitter handle @Lalegale for inappropriate postings (tweets), indicating opposing views to that of the Government –

and so forth.  Then in the material before me, the section which is at page 155, line 32 in the segment where the three sections including section 13(11) are set out, the last five lines say that the breach of values is by:

making inappropriate online comments which were harsh and extreme in their criticism of the Government and DIAC administration to over 800 followers, many of whom are from the journalistic and political arena and by not declaring –

I will leave that to one side.  Then ultimately, just for completeness, the breach decision is at page 182.  That decision finds the actual breach based upon the material I have taken your Honours to.  I will just give your Honours the passages - at lines 30 to 38 and lines 44 to 46.  At 44 the point is made:

they are often highly critical of the Government, the Minister, the Immigration portfolio and DIAC’s Communication Manager, Sandi Logan.

KIEFEL CJ:   Mr Merkel, it has been said more than once by this Court that the question in any case where there is a challenge to legislation on the basis of breach of the implied freedom is that it is not a personal right but it is a freedom which operates as a restriction on legislative power.  It is to be understood in that way.  That said, it is also accepted, I think, in some of the judgments that individual cases where communication has been restricted may be useful as examples of how the legislation operates to restrict the freedom in its general effect and the extent of the burden.  Is that what you are taking us to this material for?

MR MERKEL:   Yes, your Honour, purely a useful example of how the Code works in practice.  In practice, what we derive from this is that it does show the role of social media.  Here is an ongoing dialogue.  It is a specific type of political communication.  As your Honours have seen, what it shows is on this kind of social media communication one finds that you have what we say is at the heart of what the freedom of political communication seeks to protect because what the snapshot I have taken your Honours to shows there is communication between representatives and electors, electors to representatives, electors to journalists and electors to electors.  

I will not take your Honours to it but at Unions NSW (No 2) there is a reference back to Justices Deane and Toohey in ACTV at 174 – it is in paragraph 40 – which are examples of the communications protected.  We say all these categories fall within the kind of protection that the freedom seeks to give, but in the modern ‑ ‑ ‑

KIEFEL CJ:   The question in this case is the extent to which the freedom operates to protect this particular category of persons.

MR MERKEL:   Yes, your Honour, and can I just – again, I will not take your Honours to it, but in ACTV in passages your Honours will be familiar with, at volume 3, tab 19, Chief Justice Mason particularly singled out the significance of criticism in this process.  At page 157 – I should take your Honours to volume 3, tab 19.  These are important passages.  Can I go, first, to Chief Justice Mason at pages 139 to 140, after his Honour had referred, at the middle of page 139, to the ethics:

representative government depends also upon free communication –

on political matters:

between all persons, groups and other bodies in the community.

Then, at the top of page 140, his Honour said:

The fundamental importance, indeed the essentiality, of freedom of communication, including freedom to criticize government action, in the system of modern representative government has been recognized by courts in many jurisdictions.

On the social media aspect can I direct your Honours’ attention to what Justice Brennan said at page 158 where his Honour made the observation, at about point 7:

The Constitution does not operate in a political vacuum. It operates in and upon contemporary conditions . . . freedom of political communication is relied on to invalidate a law –

where that happens:

the implied freedom must be considered in the context of the contemporary and relevant political conditions in which the impugned law operates.

His Honour makes the same point at the top of the next page, that doing so without reference to contemporary conditions:

the scope of the freedom would have to be expressed as a mere matter of form, not as a matter of substance.

So we say this case does squarely raise those questions.  But, in the context of the world as we know it today – which does include social media and this kind of dialogue which I have taken your Honours to – it is not just someone publishing a full page ad on one day criticising.  It is a participation in the process of communication between electors, representatives, and so forth, as I have described, occurring on an ongoing basis and that is very relevant to an understanding of the burden that, ultimately, we will be addressing your Honour on.

BELL J:   What is it about contemporary Australia, apart from the fact that a means of communication now is social media – but what is it about the emphasis that you place on a contemporary understanding of the operation of the principles?  Do you submit that the value of the apolitical, impartial Australian Public Service is to be understood through some modern lens?

MR MERKEL:   No, your Honour.  It is more that the burden imposed on preventing members of the Executive from participating in critical political communications must be understood in the context in which that occurs.  In respect of social media, what I have just identified to your Honours is the content of social media which is so important.  It is not the identity of the person making the comment.  It is the content of the comment that produces the consequence.  In some cases it may be identity if it is like a minister, and so forth, but generally people are out there communicating on political matters – being critical and throwing into the market of ideas – which is so critical to political choice – their contribution in a way that could never have happened before.

KIEFEL CJ:   Mr Merkel, social media might, for some, be somewhat of a compulsion, but I understand it still to be voluntary.  It is a voluntary act, is it not, participation in social media?

MR MERKEL:   It is an entirely voluntary act, your Honour, but the burden that we are concerned with is the burden imposed by statute that limits participation by a group.

KIEFEL CJ:   I am still struggling quite to understand, as I think Justice Bell is, what you are really trying to say about how the freedom should be understood through the lens of social media.

MR MERKEL:   It goes really to the breadth of the burden, your Honour.  The practical effect of this law ‑ ‑ ‑

KIEFEL CJ:   People talk more on social media ‑ is that what you are saying – therefore the burden is greater?  Is that simply what it is?

MR MERKEL:   The burden is greater in the sense, your Honour, that the employees are not able to participate in that form of communication as well as all other forms of communication by which they may be identified as criticising the government.  It is just an example, your Honour; it is not exhaustive but it ‑ ‑ ‑

KIEFEL CJ:   It limits the areas of discussion within the social media context.

MR MERKEL:   It uses the social media context as one example of the burden that is imposed, because this is not a social media prohibition, it is an absolute prohibition.  What I wanted to identify is that its practical effect is to stop participation of employees who are being critical of government in their communications, and this is just one form of how that occurs.

NETTLE J:   But it is accepted that it imposes a burden on the implied freedom.  That is not an issue.  The question is whether the burden is justified having regard to the need for an apolitical and professional public service.

MR MERKEL:   We will come to that, and that is correct, your Honour.

NETTLE J:   Can we not just go straight to that and accept that there is a burden?

MR MERKEL:   There is a lot of argument about - some of the submissions suggest that the burden is a slight burden.  Our submission is that it is a very broad one indeed. 

NETTLE J:   I see.

MR MERKEL:   That is how we put it.  It is the breadth of the burden and the nature and extent of it that has to be considered.

BELL J:   If social media had not as yet been discovered, do you say the burden would be the less?

MR MERKEL:   No, your Honour, it would not be the less.  We do say, having regard to what Justice Brennan said, that the kind of participation that we see here as an example of an ongoing dialogue is one form of political communication that had not been considered and around before, but the burden is as broad irrespective of whether you look at it through that prism and all the other prisms. 

Can I go to the Public Service Act?  You have already been taken to it but I want to take you to it for one reason, and that is that the Solicitor‑General gave examples of conduct that he contended should be tested through the operation of section 13(11) read with section 10(1)(a) as if those two sections had all the work to do, but we say that that overlooks the work of other sections.  I only ask your Honours to note in respect of senior public servants – your Honours were taken to section 12 about the agency head, but also section 35 requires SES employees, in respect of their functions, to have a similar function in respect of the values as are employees.  So senior employees have a greater statutory context than lower‑level employees. 

Could I also ask your Honours to note section 29(3)(b), to meet the example that is put by my learned friend that if, say, someone in a department in charge of racism was found to be anonymously twittering racist comments, the exposure in that situation would enable termination, on the basis that the person no longer has a necessary attribute for that person’s employment.  Then my learned friend also gave an example of an executive officer who made the anonymous exposé, and we would say that section 13(10) would prohibit, and be a breach for using inside information. 

So we say that not all the work in respect of maintaining the objects in section 3A is to be done through the prism of the two sections with which we are concerned.  Can I go now to the submissions we wish to put as to the invalidity of sections 10 and 13.

GORDON J:   Do you really mean 10 and 13, the whole of 10 and 13?

MR MERKEL:   No, sorry – 13(11) read with section 10(1)(a).  We are not at odds with our learned friend, the Solicitor‑General, in saying that the burden upon which we rely is that as I have just described it, section 13(11) read with section 10(1)(a).  As we will identify in our submissions, the operation of those sections creates a jeopardy which is the sanctions in section 15, which may be an additional burden.  But we say the primary burden is imposed through those two subsections.

My learned friend, the Solicitor‑General, said that the sections operate in a narrow and closely tailored fashion because what is required is a nexus and identification of the nexus in any given case as to the multifactorial, fact rich and evaluative.  We resist the conclusion that any burden effected on the implied freedom is narrow, by reason of the Act requiring a nexus between the conduct and the APS as an institution.

We say that the Act operates in a much broader fashion than our learned friend suggests, even on the Commonwealth’s construction.  We make that proposition good in a number of steps.  The first is, the Solicitor‑General submitted, echoing some questions from your Honour Justice Nettle, that the conduct which failed to uphold the APS values, and the APS’ integrity and reputation, was the respondent’s creation of a risk that they would be undermined if her identity as an employee were ever found out.

NETTLE J:   Yes.

MR MERKEL:   This is a step removed from the actual harm to the APS as an institution upon which my learned friend relies.  Put another way, the actual damage which is relevant here to the APS as an institution is, in truth, the chance of damage.  My learned friend was driven to this position because section 13(11) operates on the behaviour of a person and an anonymous person’s behaviour, meaning anonymity in the sense which we have said, where there is nothing identifiable from the immediate context that could attribute the communication as coming from a member of the public service, that itself creates merely the chance of harm if the identity is discovered at a later point.

NETTLE J:   But the creation of the chance of harm does do damage to the integrity.  It is what in another place and another time would be called “conduct of prejudice”.  Because you have voluntarily incurred that risk, as it were, on behalf of the department for whom you work, you have prejudiced its integrity.

MR MERKEL:   We would say, your Honour, that there is – and again this ultimately depends on how the scheme is to be viewed by your Honours, but we say that, unlike the behaviour that comes from an identifiable employee which is critical of government policy, that causes the harm which we say is sought to be protected in this scheme, but if the person is not able to be identified, it is right they have created a risk, although may I comment that on the formulation of the Solicitor‑General it is not relevant as to how real, remote or otherwise that risk is or how exposure might have ultimately come about.

We do not quarrel with the proposition that there is a risk of exposure, but it is very far removed from the harm that in fact these sections seek to protect the APS from, but more importantly the remoteness that we are discussing between the behaviour and the harm that we say is sought to be protected by this statutory scheme is a major contributor to its width and ultimately its overreach.  On the construction put forward by our learned friend that is one of the key factors in why this does not meet the McCloy compatibility criteria.

GAGELER J:   Mr Merkel, how does anonymity now fit into your argument?  Is it just an illustration of the broad reach of the provisions?

MR MERKEL:   Yes, your Honour, and the disparity between the conduct and the harm that these sections seek to protect.  That is the first observation we would wish to make.  The examples that the Commonwealth gave at paragraph 23 of its submissions show that the connection for which it contends is, in any event, a very broad one and a connection which may be very attenuated. 

Third, using Ms Banerji’s case only as an illustration of this legal and practical operation, her conduct is said to have caused actual damage to the APS as an institution because some time after she tweeted her superiors conducted an investigation and determined that she was using the Twitter account LaLegale.  The Commonwealth, in fact, criticises the respondent for seeking to impose a temporal limit.  On its view there is no temporal limit.  Conduct carries with it the long‑term liability to exposure which again shows how broad the statutory provisions on that construction are in their operation.

Fourth, it is notable that - and the Human Rights Commission submission pointed this out at paragraph 41 - the identifiability of the public servant as an important factor in its contextual analysis is not regarded by the Commonwealth as relevant at all and it shows that a tenuous connection is enough.  Fifth, the restraint on conduct is extended because exposure of the speaker’s identity as an APS employee might even come about at the hands of another person or be out of the control of the employee who was speaking.  Now, that does not say the risk was not there but ‑ ‑ ‑

KEANE J:   But does the employee not have a responsibility in this regard?  I mean, to say that the publication is anonymous when made but possibly will not become – possibly will become identifiable or the author will become identifiable - if your case is all about the importance of anonymity and the special nature of anonymity, is there not a responsibility on the employee to exercise a degree of circumspection having regard to the risk, indeed, the likelihood - this case is an example - that anonymity will not preserved?

MR MERKEL:   Your Honour, we use ‑ I have two answers.  We say that there is nothing improper or unethical about engaging in anonymous political communications as such.  There is no obligation – no suggested obligation not to engage in anonymous communications.  The problem arises in respect of apolitical communications because primarily of the value of the APS as an apolitical institution in section 10(1)(a).  The answer to your Honour’s question, in effect, depends on the answer this Court gives to the validity of the operation for which the Commonwealth contends.  But the second answer I give ‑ ‑ ‑

KEANE J:   No, we are talking about APS employees who serve an apolitical institution.  They have – your client makes political comments, avowedly political comments.  Your case is that they are protected because they are anonymous.

MR MERKEL:   No, your Honour, it is not they are protected because they are anonymous, what we are ultimately saying is that because the burden imposed extends so far as to extend to communications which have no identifiable connection to the Australian Public Service, the harm sought to protect the public service from has not occurred because it is no part ‑ ‑ ‑

KEANE J:   So, if it is possible to identify the author as an APS employee the harm is established.  My question to you is, is it not the responsibility of the APS employee to recognise the possibility and to take responsibility for the possibility that anonymity will not be preserved?

MR MERKEL:   Your Honour, when you say “the responsibility”, if your Honour puts it in terms of a duty, a legal duty, we would say that there is no such duty, because there is no prohibition against anonymous communications, other than under these sections, and that depends on how they operate.  The real point we want to make, your Honour, is that there is a disconnect between the conduct that is anonymous and the harm that occurs.

And my learned friend has made it fundamental to his submissions, as we understand it, to delineate between comments out there by the public which are critical of the public service, which would not produce the harm that these two subsections seek to protect the public service from.  It is only when it is identified that the source of the communication as a public servant that that harm can arise.

What we are saying, your Honour, is that harm can only arise in the context that we are discussing, where the person making the comment is not identifiable – and that is the critical element ‑ anonymity is an example of where they are not identifiable.

EDELMAN J:   Not identifiable at the time.

MR MERKEL:   At the time.

EDELMAN J:   Would you, or do you, disagree with the Commonwealth Solicitor‑General’s example of a member of the public service, perhaps a very senior member, a departmental Secretary, who makes comments that are perhaps highly critical of the department to his or her spouse, as an example that could never conceivably fall within section 13(11)?

MR MERKEL:   No, your Honour.  We do not say that at all because my learned friend’s operation, once he copes with “at all times”, meaning at all times, has to find all the work that is done in these two subsections in the identification of the public service employee.

EDELMAN J:   So if in the course, for example, of an acrimonious divorce, the partner publicly publicised all of the statements that had been made, that would be an example of a later temporal connection?

MR MERKEL:   If it were republished, yes.  In any circumstances, if the senior public servant had made the comments, using the race example that my learned friend gave, and that was to one person, and that person knew that the public servant, he and his wife or friend or whoever, was in charge of race relations at the Federal Police, then of course the harm would be instant.

EDELMAN J:   Sorry, in the example, is 13(11) contravened because of the statement to the spouse or is it contravened because of the potential ‑ the possibility that that statement might be further publicised?

MR MERKEL:   Yes, it might be further publicised but the further publication as the communication deriving from the identified public service employee is what produces the harm, and that is the risk that the public servant has taken in respect of making that publication.  But if the person is not capable of being identified as making the publication, then there is no harm when it is made, and my learned friend’s case appears to accept that so it is entirely the risk case.  But the risk in your Honour’s example to me is a very different one, because the person making the communication is identifiable as a public servant.

So we are on that pathway, and that person is then into the multifactorial risk analysis that paragraphs 22 and 23 of my learned ‑ submissions say is the proper process of analysis in a case like this.  The outcome of that analysis would give your Honour an answer as to whether it in fact was a breach, and that they depend on all the facts, but it is not part of, as I understand it, that multifactorial analysis to say it could not possibly be a breach.

BELL J:   As I understood it, the significance of the use of the words in 13(11) upholds the APS values is that it does not impose a bright line test.  So to come back to the suggestion of the senior public servant who privately communicates his or her views critical of government policy to his or her partner, it might be, even if that comes to public attention through an acrimonious divorce dispute, it would not be a correct conclusion that the senior public servant had failed to uphold the values in 10(1)(a) by reason of the expression of their private views to their then spouse.

I think, when one looks at the practical operation of this scheme, as I understand the Commonwealth’s argument, it is significant to take account that “upholds the values” is a more flexible concept than the idea of a bright line test for breach.

MR MERKEL:   Your Honour, we have no difficulty with what your Honour says but the problem that is found in section 10(1) operating with section 13(11) is that the words “at all times” my learned friend accepts are to be given their literal meaning.  He finds all the work that is to be done in ensuring it does not get to the extraordinary situations of the kind that your Honours have put to me is to be found elsewhere.

What I would say in what your Honour has put to me and what Justice Edelman has put to me is that what the person has done by their behaviour as a public service employee is expose themselves to the risk of republication as a public service employee.  When you go to the width of the term the value of the APS is apolitical, that is of enormous breadth which allows this case for example to be put on so many tweets which are political.

BELL J:   Mr Merkel, you have a finding that some of the tweets were harsh and vituperative in their criticisms both of government and opposition, so that I think it is necessary for you to address that.

MR MERKEL:   Your Honour, that is, of course, correct.  We have several answers.  The first is that the conduct that was found inappropriate was not limited to those tweets.  It covered all of the tweets – probably even wider than exhibit B – attachment B – but attachment B is the representative example – most of which are not within that category.  So, if the respondent was found to have breached, by reason of identified tweets, then what your Honour says to me would be the example given.

But, the second answer, your Honour, is that if those tweets were put out by someone who was not an employee, it is not suggested, in my learned friend’s case, that that conduct could produce any of the harm which this Act is designed to protect.  So, that is why we say the identification of the conduct emanating from someone identifiable as an employee – we give that the broadest sense.  It could be from the content.  We do not try and narrow the possibilities where that applies.  But, where it comes from a person who is not identifiable, it is not discernable to be any different in the public domain from a person who is identified but not a public service employee.

Your Honour, we say that the third answer to your Honour is that when you look at the breach decision – and I have taken your Honours briefly to the passages – but look at them as a whole, it is inescapable that the underlying characterisation of the conduct found to be in breach related to the respondent’s criticism of the government and the department.  That is in page 182.  I have taken your Honours to that sequence.

So, we say on a fair view of the material, having a look at the practical effect, one does not go to the extreme observations.  The practical effect of what has occurred in this case is that if employees are critical of the government and its policies or of Ministers, they are in jeopardy because of the width of the operation of this section and in jeopardy of having the sanction imposed.

So, it is that view that we take of the practical operation as a useful example.  If those extreme tweets were singled out, then there might be some force in what my learned friends might say that it is only at the extreme end.  But, still, that does not overcome the essential problem that the harm is but a risk, which goes to the central point we are making. 

Can I go to the fifth point we wanted to make and that is the restraint on conduct is extended because of the exposure of the speaker’s identity as an employee.  Sorry, I had said that might come about as a result of a third person.  The sixth is the principal concern about the extreme nature of these tweets.  Again, it is a further answer to your Honour’s question.  That is broad but minds might differ on the subject because intemperate comment is, of course, part and parcel of political communication in any event.

GAGELER J:   Sorry, Mr Merkel, where are we in your outline of submissions?  I am losing track of the points.

MR MERKEL:   In paragraph 3, your Honour.

GAGELER J:   Thank you.

KEANE J:   Mr Merkel, do you accept that the object of preserving an apolitical public service is a legitimate object?

MR MERKEL:   Yes, your Honour, it is a legitimate object.  We will take your Honours to some relevant history recently about the context in which that object is to be understood, but we do not have any quarrel that it is a legitimate object.  We raise no point on that, your Honour.

BELL J:   Do you raise any point about the Commonwealth’s submission that, having regard to the place of the public service within our constitutional framework, there may be less requirement for justification of an object that is the preservation of the apolitical and impartial character of the public service?

MR MERKEL:   We accept the first part of the Commonwealth’s submission that there is a special constitutional function and recognition of the importance of the public service.  I will come to address this in more detail later. 

The second part of our response – foreshadowing it, your Honour – is that there are two sides to that and from the case law it is critical because of the importance of the public service as part of the machinery of government, any restriction on communication of what it is doing has its reverse side on that balance and we say this is one of the problems of the overreach because it effectively shuts off critical comment independently of the harm that it might cause.  I will come to that as a separate topic because we do want to deal with that.

We have mentioned at the beginning of paragraph 3 of the outline the Tribunal’s broader literal construction.  We do not address that in any detail because that is even broader than the Commonwealth’s construction, but we do say that the practical burden of both constructions is that they require, in their practical effect and in their legal operation to a large extent, APS employees to abstain from political communications.

We would say political communications mean from promoting or criticising government because promoting is on the government’s positive side of not being apolitical; criticising is on the negative side of being apolitical.  But the criterion, which is a high standard which is set in subsection (1)(a), is based upon the word “apolitical” which cannot depend upon whether it is positive or negative criticism.

NETTLE J:   It is accepted, is it not, that what the respondent did in this case did contravene 10(1) and 13 but for the implied freedom or is it said that she did not contravene them?

MR MERKEL:   I think the answer is yes.

NETTLE J:   It was accepted.  That was accepted in the Tribunal.  Put aside the implied freedom for a moment, she had acted in breach of her obligations under 10(1) and 13(11).

MR MERKEL:   The answer is yes, your Honour, although I would qualify it in this way.  On my learned friend’s multifactorial approach, if it were correct, some of her tweets would be deleted.  Talking about the critical ones, they are clearly in breach.

NETTLE J:   It was accepted that she had acted in breach of those statutory obligations.  Therefore, it was accepted that she acted in a way which prejudiced the apolitical and professionalism of the public service.  What is said is apparently that, notwithstanding that she did that, the implied freedom of political communication means that a statute cannot proscribe that sort of conduct.  Is that it?

MR MERKEL:   That is what – I think that is a fair summary of the Tribunal. 

GORDON J:   No.  We are asking what your position is here. 

MR MERKEL:   I think it is correct that if you find ‑ ‑ ‑

GORDON J:   We are not finding.

MR MERKEL:   No.  Sorry. 

GORDON J:   We have findings which we are stuck with.  We had this debate yesterday.

MR MERKEL:   No, I have no problem with any of the findings of the Tribunal.  Our case centres upon the lack of identifiability of the ‑ ‑ ‑

NETTLE J:   But that could only go to the breach, surely? 

MR MERKEL:   Yes, your Honour. 

NETTLE J:   Well, the breach is accepted.  The question is whether it was constitutional for the Parliament to prescribe that sort of conduct in the way in which it is accepted that it did, or was barred from doing so by reason of the implied freedom. 

MR MERKEL:   I am not sure.  I have to look at – I think that is correct, your Honour.  But when you say the breach was accepted, I think the acceptance of the Tribunal was based upon finding that the literal construction applied. 

NETTLE J:   What was said by the Tribunal was that it was agreed that the only issue was whether or not the termination fell outside the exclusion because of the implied freedom. 

MR MERKEL:   That is correct, your Honour.  Yes. 

NETTLE J:   All right.  It must follow from that that it was accepted that she had acted in breach of the obligations imposed by the Act, subject to the Act being held unconstitutional by reason of the implied freedom. 

MR MERKEL:   That is correct, your Honour. 

NETTLE J:   It does not matter whether it is anonymous or exposed, does it?  I mean she acted in breach.  That is the accepted fact.  The question is was the prescription of that breach unconstitutional. 

MR MERKEL:   Yes, your Honour.  I think that is correct. 

NETTLE J:   So the argument amounts to saying that although the conduct was to the prejudice – I beg your pardon, prejudice the integrity or professionalism of the public service in a way which contravened those provisions, it was unconstitutional for the Parliament to prescribe them by reason of the implied immunity. 

MR MERKEL:   Yes, your Honour, but we do want to make the point that this case, of course, is an illustration, and it is there for its practical effect, but I do not have any quarrel with what your Honour has put to me and the answer is yes. 

KEANE J:   So every Commonwealth employee is at liberty, by virtue of the implied freedom, to act in a way that prejudices the integrity of the apolitical public service?

MR MERKEL:   Well, your Honour, the answer is if the – it depends on the validity of the section.  If the section is ‑ ‑ ‑

KEANE J:   Yes.  You say it is invalid. 

MR MERKEL:   Yes, your Honour.  It is invalid because of the encroachment on the implied freedom.  But if it is valid, the answer is that they are not so entitled.  But if it is invalid, then Parliament would have to tailor a provision that is more tailored to the harm to prevent the overreach that we say is the vice of these provisions which so distort and interfere with the flow of information. 

GORDON J:   Can I just understand that submission.  What does “more tailored” mean?  Yesterday it was a distinction based on immunity.  As I understood your submission this morning that is not the way you put it.  What is the “more tailored” position? 

MR MERKEL:   The “more tailored” position, your Honour, is that the communication must be by a person who is identifiable as a public servant in the context of making the communication. 

GORDON J:   So we are back to the temporal requirement that they be identified as a public servant at the time of the making. 

MR MERKEL:   Identifiable ‑ ‑ ‑

GORDON J:   What does that mean - identified or identifiable in the future?

MR MERKEL:   No, identifiable – that is why we use the context, the immediate context which I took your Honours to earlier.  The immediate context can include the provision of information which, on its face, must have come from the public service.

NETTLE J:   But, if as you accept, conduct which is not identifiable is capable of and did constitute prejudice to the professionalism and integrity of the public service why should it be limited to conduct which is identifiable?

MR MERKEL:   Your Honour, we say – I hope I am not contradicting myself but we say the conduct that is not identifiable can only create the risk or chance of harm which only comes to roost when they are identified.

NETTLE J:   So much is accepted but what is also accepted apparently, as it was below in the Tribunal, is that such conduct, albeit that it may not have been identifiable, constituted prejudice to the integrity and professionalism of the public service to such an extent as to breach 10(1) and 13(11).  If it does, why should the Parliament be restricted to proscribing conduct which is identifiable?

MR MERKEL:   Your Honour, I will have to look at the paragraph – can your Honour tell me what paragraph you were ‑ ‑ ‑

NETTLE J:   Paragraph 38.

MR MERKEL:   Because paragraph 116 which our learned friends do not like is very much to the opposite effect.

NETTLE J:   I am just going on the issue.  The one identified issue it was said by the Tribunal is that.

MR MERKEL:   I will have to have a look at that your Honour because that ‑ ‑ ‑

KIEFEL CJ:   Perhaps you might consider the answer to Justice Nettle’s question while the Court has its morning break.

MR MERKEL:   Thank you, your Honour.

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

KIEFEL CJ:   Yes, Mr Merkel.

MR MERKEL:   Thank you, your Honour.  Your Honour Justice Nettle’s question I think might be answered in three parts.  The first is the parties accepted that the respondent breached the Act by her conduct, subject to the implied freedom.

NETTLE J:   Yes.

MR MERKEL:   The second part of the answer is that on the Commonwealth’s construction, the provisions are breached when they create a risk of harm.  On that basis, there is a breach.  Third is accepting that construction, and her conduct contravened it, the question for the Court is whether the burden is justified.

NETTLE J:   Yes.

MR MERKEL:   We say that is how we would respond to those questions, your Honour.

KIEFEL CJ:   Are you going to move on to the implied freedom now?  I think paragraph 4 ‑ ‑ ‑

MR MERKEL:   There are just one or two matters I wanted to deal with first, if I may, your Honour.  Your Honour Justice Gordon asked my learned friend, the Solicitor‑General, about the fact that employees chose to take up their employment as an employee.  We understood the gravamen of the answer that the Solicitor‑General gave embraced that the burden on political communication is more readily justified because they took that employment with their eyes open.

We would resist what my learned friend said for a number of reasons.  The first is that the implied freedom is a restraint on power, not a right.  The individuals may choose willingly to limit what they can speak about, in order to obtain gainful employment.  It is not to the point, because we are concerned with rights which a person could be said – we are not concerned with rights which a person could be said to have waived.

We say further the implied freedom is concerned with the flow of information in the Commonwealth, and it is not to the point that an employee may choose willingly to restrain themselves.  Put another way, by requiring this of employees, by statute in particular, the Commonwealth burdens the flow of information by limiting the capacity of a particular class of persons to speak.

To put it another way again, the burden is not relevantly or not only on the particular cohort of APS employees, but on the system as a whole, which is denied political communication by those employees, to the extent of the legislative constraint.  Finally, of course, the restraint is imposed by statute, not contract, and the implied freedom operates to limit that legislative power.  So we say for those reasons, voluntariness is not really a relevant consideration.

GORDON J:   Of course, the flipside of that, as I understood the argument, is that it is not at large.  It is a group of people who are described as APS employees.

MR MERKEL:   Yes, your Honour.

GORDON J:   Who, through their employment – yes, it is imposed by statute but as I understood the Solicitor‑General for the Commonwealth’s submissions, having gone through the statutory provisions as well as the idea that you understand, that is you are about to enter employment with the APS.  So it is limited to a group, it is limited for a particular purpose.  So when one is looking at the nature and extent of it, it must be relevant, must it not?  To put it another way, you do not suggest it is irrelevant completely?

MR MERKEL: No, I cannot say it is irrelevant, your Honour; it is a factor amongst others. Can I just say something about the constitutional role of the Executive? Whilst the Constitution does not say anything about an apolitical public service, it recognises the service as part of the constitutional machinery, but that, as we will point out later, cuts both ways and it shows unremarkably that the Commonwealth has an interest in the operation of departments in the public service. It also shows that the people have a particular interest in the operation of the public service as an aspect of that system about which they should have information.

I will not take your Honours to it but in Lange at pages 561 and 571 that interest is spelt out in being informed of public interest and being informed about what public servants are doing.  Public servants of course are experienced in the workings of the public service and must not divulge confidential or inside information, but the flow of information is otherwise impeded by restricting their communication. 

So we say, in the context of the constitutional analysis, an over‑broad restraint on communication by public servants poses a particular risk to the system of representative and responsible government because it represents a risk of stifling the voices of those particularly aware of how the public service and the Executive are operating.  We say that that does not result in no restraint but we say that the Court should be particularly astute to scrutinise those restraints. 

I want to move just briefly to summarise how we rely on the legislative history.  My learned friend did take the Court briefly to the legislative history but I will just summarise it to give your Honours references without taking you to the books.  It is correct that until 1987, from about 1922, regulation 34 prohibited public servants from publicly commenting on administrative action or the administration of a department.  That regulation is found in volume 3, tab 12 at page 996. 

Since 1987 the restraints have been much more limited.  The material does not provide any justification for a tighter restraint than that which was originally imposed or any intention of a restraint.  In fact, quite to the contrary, the legislative history was set out at paragraphs 34 to 38 of our submissions and the Australian Human Rights Commissions’ submissions at 33 to 41.

Briefly, the history is that regulation 34 was repealed in 1987 and replaced with regulation 8A(i), which is at volume 2, tab 8, 726, which totally removed any restriction on public communication.  The explanatory statement for the new regulation and the repeal is at volume 9, tab 48 at 3739 and it explains the reasons for the change.  Essentially, they were not to restrict public servants from being engaged in communications.

The explanatory statement says that the change came about as a result of a Royal Commission report.  That report is at volume 10, tab 58.  Can I just give your Honours the page references.  It is paragraph 8.5.55 at page 4361.  There is again the intention that public servants should not be restricted in the exercise of their civil and political rights, which would mean political communications.  Recommendation 199, which gave rise to regulation 8A(i), is at page 4363.  We then have the 1999 Act with which we are concerned in the present case.  It was introduced but it widened the scope of the operation by introducing a new concept of values. 

The explanatory memorandum for that Act is in volume 9 at tab 47 and paragraph 3.14.14 at 377 shows that there was no intention whatsoever for these provisions to somehow wind back to the days of the previous prohibition.

GORDON J:   Is that right?  I had understood that the explanatory memorandum at 3.14.14 explains that it is to be wider than the regulation at paragraph 8A.

MR MERKEL:   Yes, it does, your Honour, but I take that – we have taken that to mean by the introduction of a new set of values, APS values, but there is no suggestion that that was intended to, in effect, revert to some kind of prohibition on political communications of the kind that we find on our learned friend’s submissions are covered. 

NETTLE J:   But what does it matter?  It is accepted that it does apply to the sorts of communications that occurred in this case.

MR MERKEL:   That is right, your Honour, but we say that this is not directed to a question of construction of the provisions, it is directed to an understanding of what the effects were of this – these legislative changes to better understand the objective and what was intended by in the objective of being apolitical and we say that it shows a number of things.  It shows that it is relevant to the context in which the legitimate purpose is to be considered.  It also goes to disclosing intention of a narrower restriction on political communications by public servants since the repeal of regulation 34. 

Thirdly, it shows that since the repeal there has been a consciousness of public servants, employees, participating in public debate that is recognised in the material for the purpose of section 3(a) needs not to be advanced solely by the severe restriction which, we say, our learned friend’s construction puts forward but it rather can be achieved by something narrower.  You will see through this legislative history there is a trend from a burdensome to a lifting of that burden and on our learned friend’s submissions, a return to that burden ‑ ‑ ‑

EDELMAN J:   How does this help your argument?  If provisions – one were to accept your submission that the legislative history shows an intention to impose a narrower restriction on public servants, that militates in favour of validity, not against it, does it not?

MR MERKEL:   No, because the operative effect is to give a wider – impose a wider burden, your Honour, behave in a way that upholds being apolitical makes ‑ ‑ ‑

NETTLE J:   Mr Merkel, granted that it might have been thought it was intended to narrow the section, upon the agreed facts the section captures the sort of conduct which was committed in this case.  What does it matter that the Parliament might have thought, wrongly, that it was creating a section which was of narrower scope?

MR MERKEL:   Your Honour, ultimately the question relates to what the legitimate interest is that is being protected for the purpose of the constitutional question.  Acceptance that the respondent is in breach, gives rise to the constitutional question.  It does not answer it.

NETTLE J:   But the legitimate purpose at which the legislation is aimed is the protection of the professional and apolitical public service.  We know that.

MR MERKEL:   Yes, your Honour.

NETTLE J:   The question is whether it goes further than is permitted under the implied freedom in achieving that objective.  It cannot at all assist in that to look back at what some parliamentarian thought was the effect of legislative amendments 12 years ago. 

MR MERKEL:   It was not so much parliamentarians, your Honour; it was a Royal Commission report that explains the progress of the amendments. 

NETTLE J:   Whoever.

MR MERKEL:   But I do not want to overstate the point.  We really just say that the most recent history shows that the legitimate purpose is not advanced only by the broad prohibition on public comment that my learned friend wishes to put forward.

GORDON J:   I do not seek to take your time, Mr Merkel, but I had understood that the report that preceded the 1990 Act was directly contrary to that, in the sense that it was directed at setting up a system which now narrows and mirrors the language in the 1990 Act.  That is, the expectation that there would be - that the 1992 Act and the amendments that had been made in 1987 led to huge problems, and that was the reason for this change in structure and approach. 

MR MERKEL:   That is right, your Honour, but I do not – and I could stand corrected – I do not understand that that related to the area of political communication by public servants because that was what repealed as part of this process.  But I will not delay the Court any longer on it.  Can I go to the principles that we say arise here.  The question of ‑ ‑ ‑

KIEFEL CJ:   Are you getting on to the question of the implied freedom?

MR MERKEL:   Yes, your Honour.

KIEFEL CJ:   That is the core issue.  I was just a little concerned that you were not allowing yourself enough time within your time estimate.

MR MERKEL:   I will try and move quickly, your Honour.  We advanced a number of propositions.  First, on the Commonwealth’s construction, the legal effect as well as the practical effect of the two subsections is they capture political communications made by a public servant in any form, in any circumstances, including when using social media when their status is not identifiable.

KIEFEL CJ:   This is the extent of the burden that you are addressing?

MR MERKEL:   Yes, your Honour.  The second is in their practical operation.  The subsections burden the freedom by requiring a targeted category in the Australian community – public servants to abstain from engaging in any form of discourse being critical of government policies and Ministers, and if they fail to do so they are in jeopardy of disciplinary action for breach of the Code. 

On the issue of suitability, we say the purpose of maintaining an apolitical public service – as set out in the Commonwealth submissions, paragraphs 25 to 26 – is not rationally advanced by a law penalising all communicative conduct by public servants, including communications that cannot be attributed to an identifiable employee.  We say this is because:

A comment made anonymously cannot rationally be used to draw conclusions about professionalism or impartiality of the public service.

That is the finding that the Tribunal made at paragraph 116.  Whether it be a finding of logic may be a matter of debate.  But we say, subject to the risk of harm point, it is clearly accurate and an accurate finding.

GAGELER J:   If it is wrong, Mr Merkel, is there anything left in your case?

MR MERKEL:   Sorry?

GAGELER J:   If that statement or finding is wrong, is there any other point in your case?

MR MERKEL:   Yes, your Honour.  Our case really depends upon the issue that I do not think was addressed in that paragraph which is the risk analysing the harm not occurring by the publication but being the jeopardy, a risk that may come home at some future time, no matter how real or remote.  It is the disconnect that gives this broad operation which is really our case.  Paragraph 116 is a very significant stepping stone but it is not the only element in the case.  I should say we will be addressing your Honours on section 15 as a separate point.

On the lack of rational connection, we rely particularly on passages in Brown and I will give your Honours the paragraphs – 109 and 140 from the judgment of your Honour the Chief Justice, Justices Bell and Keane, where your Honours said:

it is in consequence of this overreach of means over ends that the Protesters Act operates more widely than its purpose requires.

We say that captures the point which we seek to make by ‑ ‑ ‑

KIEFEL CJ:   I do not think that was addressed to rational connection.  It was a balancing.

MR MERKEL:   Thank you, your Honour.  I think that is correct.

NETTLE J:   Mr Merkel, just on this rational connection point, I am sorry to labour the point but it seems to me to be important.  You, that is to say your client, accepts that anonymous communications as she would have them, of the kind which she made, did have the effect of contravening 10(1) and 13(11) because they had a detrimental effect upon the impartiality and professionalism of the public service.  Is it an overreach?  Is it not rationally connected to preventing that to proscribe that sort of conduct as 10(1) and 13(11) purports to do?

MR MERKEL:   Your Honour, the answer is no, but unless I am wrong, I do not see how the acceptance of breach in paragraph 38 is an acceptance of harm by reason of her communication when it was anonymous.  What we are really saying is that on the construction put forward by the Commonwealth where the harm is in the risk, she is in breach, but we do not say ‑ ‑ ‑

NETTLE J:   There can be no breach of 13(11), and it is accepted that there was one, unless the employee behaves in a way that fails to uphold APS values and the integrity and good reputation of the APS.

MR MERKEL:   Yes, but that relates to the employee’s conduct as such and it has nothing to do with the identifiability of the employee when doing it.

NETTLE J:   Yes, it does, because in this case you contend that her conduct was unidentifiable in the relevant sense and yet it is accepted that, despite it being unidentifiable in what you say is the relevant sense, her conduct did not uphold values, integrity or reputation of the APS.

MR MERKEL:   Your Honour, that depends upon the definition of “breach”.  What we have said to your Honour in the answer to the question earlier is that on the Commonwealth’s construction there is a breach but on the Commonwealth’s construction the harm is the risk, not actual harm by reason of the conduct by an unidentified employee.

NETTLE J:   Well, whether or not it is the Commonwealth’s construction or not, you accept that there was a breach constituted of the conduct which was committed?

MR MERKEL:   Yes, your Honour, but the breach ‑ there is nothing in the statutory scheme that said as an element of breach it must cause harm.  That is the argument that is all being presented here.

KIEFEL CJ:   I think you might be up to paragraph 7 of your outline, Mr Merkel.

MR MERKEL:   Thank you, your Honour.  Can I go to necessity.  Your Honour, we say there is a reasonably practicable alternative means of achieving the same object that would have a less restrictive effect on the freedom that would be a rule that it did not apply to anonymous conduct.  Then can I move to adequacy in the balance.  Section 13(11)’s substantial and discriminatory burden on the political communications of public servants go far beyond what can reasonably be justified in pursuing the purpose of maintaining an apolitical public service, having regard to the following considerations.

First, the breadth, the practical effect of the provision is broad enough to burden the expression of any political opinion on any topic, and in any circumstances, whether critical or supportive of the government.  Second, we say there is a tendency in the practical operation towards viewpoint discrimination.  In practice, supportive political opinions, although not being apolitical or undermining the apolitical objective, are most unlikely to be considered a breach.

GAGELER J:   How can you say that, Mr Merkel?  I mean, on what basis can you make that submission?

MR MERKEL:   We would say, your Honour, that it is unlikely that – we say one can infer it, or one cannot.

GAGELER J:   Why?  How?  From what factors?

MR MERKEL:   That the practical operation that we have seen suggests comments critical in an adverse sense are the way in which this would operate in practice and would be likely to trigger this disciplinary action, but we cannot take it any further, your Honour.  We say it is unlikely someone would be prosecuted for promoting government policy but I will move on, I do not want to take that any further.

The third factor is ‑ and this is important, your Honour ‑ there is discrimination against a particular class of individuals from participating in political communication.  That calls for justification, because everyone has an interest in the system of representative and responsible government, and targeting the political communications of that class, in our submission, risks distorting the flow of information.

On the issue of discrimination, we do rely upon Brown v Tasmania at the paragraphs I will give your Honours – at page 361 to 2 at 95, where the plurality said:

A discriminatory law does, however, serve to identify the group targeted by a law and informs the assessment of the restrictions imposed by the law upon the ability of those persons to communicate on matters of politics and government.  It is this assessment which must be undertaken –

The next factor is political communication by public servants has a special value, and the burden imposed by section 13(11) should be viewed as qualitatively significant.

KIEFEL CJ:   Why does it have a special value, because of their knowledge?

MR MERKEL:   No, your Honour, it is deeper than that.  The more detailed answer I was going to give to your Honour Justice Bell’s question, it derives from a combination of factors.  The first is the implied freedom is essential to representative and responsible government.  Second is the responsible government involves accountability to the people of departmental officers through responsible ministers, who are in turn responsible to Parliament.

And three, a concern of the implied freedom is to ensure the free flow of information of the people about the operation of the Executive Branch.  Can I just read briefly an observation of Justice McHugh in Mulholland which is in – it is not in the book of authorities – (2004) 220 CLR 181 at 219, paragraph 94, where his Honour said:

Representative government and responsible government are the pillars upon which the constitutional implication of freedom of communication rests.  Communications between the executive government and public servants and the people are as necessary to the effective working of those institutions as communications between the people and their elected representatives.

We say that is the other side of that constitutional coin that I had mentioned to your Honour Justice Bell earlier.  We say that the class of persons burdened and the breadth of the burden presents a risk to the efficacy of electoral accountability for the exercise of legislative and executive power and we would cite what your Honour Justice Gageler observed in Brown at paragraph 164.

The other point we would make is that the Commonwealth’s construction also reads down sections 13(11) and 10(1)(a) and produces an uncertainty which has no objective criterion applicable to the conduct when it is engaged in as to whether it will be in breach of those sections or not and that the uncertainty itself is likely to have the practical effect of communications being stifled or deterred when they should not be and that is analogous to Brown observations of the Court in paragraphs 78 to 80, 144 and 145.  We say that the consequence of those factors is that the subsections impermissibly burden the implied freedom in relation to their application to political communications.  They are invalid in their operation to that extent.

Could I move away from those two subsections now to section 15?  Can I outline briefly the structure of our argument?  Your Honours have been taken to Miller and Wotton and I will not take your Honours back to them but absent the application of the principle in Miller and Wotton, we intend every exercise of power under section 15 does not necessarily comply with the implied freedom.

Second, we agree with the Commonwealth that section 15 can be construed in a way that requires each exercise of power to comply with the implied freedom but we disagree with the Commonwealth that the decision in this case did so comply and we disagree with the Commonwealth submission in‑chief that the implied freedom cannot also operate as a mandatory relevant consideration.  Can I just go into those submissions in more detail but before going there can I give your Honour the facts – just give your Honour the references where the relevant material is to be found in relation to the sanction decision.

GAGELER J:   We have been to it, have we not?

MR MERKEL:   It is a separate set of documents but I will only give your Honour reference to two documents.  After a proceeding was issued by Ms Banerji, she was asked to respond to the breach notification and her response which is at the Comcare’s further materials at page 259 relied on the implied freedom as a relevant consideration and also on the basis that she should not be found to have acted contrary to the Code.

In the termination decision, which is in the further materials at page 272 – I ask your Honours to note particularly 273, point 4 – effectively the reasons given rejected any submissions based on there not being a breach, and there was no reference to the implied freedom and - set out the reasons for the determination, which I will come back to, but they are the documents which give rise to the issue under section 15.

We dispute that section 15 in all of its operations necessarily complies with the implied freedom without applying the principle of construction in Miller and Wotton.  We accept that the language of “may” is very broad.  We say that a requirement of proportionality between the sanction of the breach need not have anything to do with the implied freedom. 

In the implied freedom context the proportionality called for is between the restraint and the burden on political communication, but the proportionality of which the Commonwealth speaks, which my learned friend referred to as lower “p” for “proportionality”, compares different considerations.  The severity of the breach may hinge upon other factors in the Commonwealth’s calculus, such as seniority, the number of offences, breadth of publicity and so forth.  We say that to say there may be a proportionality or a reasonableness test built into section 15 is talking about entirely different matters to the constitutional test required by Lange, McCloy and Brown.

We agree with the Commonwealth that the Miller and Wotton criteria can be applied to section 15 so as to confine its operation in any given case to the limits of the implied freedom.  The parties agree that, even where the Miller construction of principle can apply, the validity of an individual exercise of discretion can only be assessed by applying at least in some respects the Lange and McCloy analysis.  The Commonwealth have set that out in their submissions at paragraphs 50 to 51.             But where we disagree with the Commonwealth is whether the Court can apply an attenuated form of the McCloy analysis of whether the decision in this case complied with whatever full or attenuated form of analysis is deployed. 

As to the question of methodology, the Commonwealth’s role to contend, as it did in paragraph 47 of its submissions, that not all of the McCloy steps need be applied at this stage, we say four things in response to that.  At the least, necessity testing is also relevant.  There should be no assumption that an individual discretion cannot have been exercised in an alternative way less restrictive of the freedom, especially when we are in this territory, because on its own terms and without the benefit of Miller and Wotton the statute did not in terms confine the discretion by reference to the implied freedom.

The Solicitor‑General even invited the Court not to impose anything other more strenuous than a gross disproportionately standard upon agency heads as they cannot be expected to cope with any more fine‑tuned analysis.  If that description of decision‑making capacity be right, it lends little support to any presumption regarding necessity testing.

As a practical matter in the interests of transparency, it is difficult, we would say to see the merit of making assumptions about compatibility of purpose, suitability and necessity rather than enable the Court to determine those questions when they arise.  Especially is that so if the Court is reviewing an administrative decision without having first reviewed or ever having to consider the validity of the statute.

As a matter of principle, we say the implied freedom limits legislative and executive power, and there are many cases containing statements by this Court to that effect.  In our outline we have referred to them in Lange and McCloy, and we say that Miller as stated to be applied in Wotton, gives effect to that principle. 

We disagree with the Commonwealth’s submissions about whether the decision to terminate Ms Banerji’s employment in this case complied with the implied freedom.  The Commonwealth’s submissions on this are brief and they are at paragraph 58 of the Commonwealth’s submissions, but they direct attention to the core appeal book pages 15 to 16, where the Tribunal merely quotes the delegate’s letters. 

We have summarised the delegate’s reasons.  Ms Banerji should have known of the Public Service Act and the social media policy.  The policy told her that she should have assumed that her identity might be revealed – that was the first reason.  Second, it was likely that she would continue to post material.  Thirdly, her conduct was inconsistent with her role in the National Communications Branch, and, fourthly, there was a lack of contrition. 

We give the following responses to those reasons.  First, given the concern with her role in the National Communications Branch, it was unnecessary to terminate her employment.  She could have been reassigned.  Second, no consideration of, and the decision is disproportionate to the extent of the impact on the APS as an institution ‑ ‑ ‑

KIEFEL CJ:   Mr Merkel, is this a challenge to the penalty?  I thought you were dealing with the Miller argument. 

MR MERKEL:   It is, your Honour, that ultimately, the decision is disproportionate to the conduct, and its failure to take into account the implied freedom, revealed an error which went to jurisdiction, because the implied freedom was ignored and there was no reference to it and it was put before the decision‑maker as a factor.  The implied freedom, like in any case where it is raised, is a systemic issue which required evaluation.  The failure to evaluate it, as we would say, a mandatory consideration or a subject matter that had to be accepted as confining the powers of the decision‑maker to make the decision, rendered that decision invalid by reason of applying the Lange, McCloy test to the decision.

KIEFEL CJ:   Is not the process you need to undertake to determine the scope of the statutory power to see if the discretion for which section 15 provides can come within that boundary?  Is that not what Wotton does?

MR MERKEL:   Yes.  That is right.  But we say, your Honour, that it is a decision directly in respect of political communication, and we say that there is nothing built into the statutory scheme that requires the power to be exercised in accordance with the implied freedom, such as what was suggested by ‑ ‑ ‑

KIEFEL CJ:   But that is an assumption.  That is what Miller says.  The assumption is that the discretion must be exercised within – taking into account constitutional limitations.  The question is whether it can. 

MR MERKEL:   Your Honour, we say it certainly can be – the test can be applied to it.  But we put the adoption of Miller in Wotton at a slightly higher level, starting with the Lange principle that the implied freedom operates as a limitation on statutory and executive power.  The limitation we rely upon in Wotton has a limitation on executive power.

KIEFEL CJ:   Lange works on legislative power.

MR MERKEL:   It does work on – but the comments on the effect of the implied freedom, your Honour, extend to the implied freedom limiting executive and legislative power.  But paragraphs 54 to 58 of the Commonwealth’s submissions appear to accept that if we are through that doorway, then the Lange test must be satisfied.  It is just that what is put forward by the Commonwealth is a much more attenuated version of that test.  The Commonwealth has not disputed, your Honour, in that context – as I understand it – that the consequence of Miller and Wotton is that the decision must be within, and not beyond, the confines of the implied freedom as applied in those cases.  Paragraph 54, your Honour, says, in respect of adequacy of balance:

in the context of broadly framed statutory powers that appear on their face capable of exceeding constitutional limits, it may be necessary to complete the constitutional analysis by reference to the impugned administrative decision.  The rule of construction identified in Miller means that such a power is valid because it is construed as operating subject to the constitutional limit, meaning that the question shifts to whether the particular decisions falls within that limit.

We say that the kind of limitations within the creation of the statutory power that might keep it in its operation within the Lange test are absent here because there is merely the broadest of discretions without criteria and we say the Lange test does apply and we say it has not been met. 

But we also rely on – can I take your Honours to it briefly – what was said by the Full Court of the Federal Court in Chief of Defence Force v Gaynor which is in volume 4 at tab 22.  At page 317, paragraph 80, their Honours, in the Full Court, when they were considering this very issue, said:

For the purposes of the present appeal that question, interesting as it is, also need not be determined.  Even if it –

So, if I can go down, if it was required to look at the decision itself – this is at line, about 86:

To do so would have required a discussion of whether the appellant had taken into account the implied freedom in the way he exercised his discretion:  see Wotton at [21] and [88], and Miller at 613‑614 . . . Describing the implied freedom as a relevant consideration (as Kiefel J did in Wotton) is one way of characterising the nature of the excess of power, although not the only way.  

We say that when in Miller and Wotton the statements were made that the exercise of power must be in accordance with the implied freedom and the validity of the exercise will depend upon that exercise being in accordance with it, that has failed to occur in the present case and we say an essential stepping stone is that it is a mandatory consideration which has to be given real and genuine consideration to and that has not occurred in the present case, but we dispute ‑ ‑ ‑

GAGELER J:   Is your case that it is a mandatory relevant consideration which will result in the decision being vitiated or beyond power if it is not taken into account or is your case that it sets a bound on the outer limits of the exercise of discretion?

MR MERKEL:   We put it both ways, your Honour.

GAGELER J:   In the alternative, is it?

MR MERKEL:   Yes, we put it in the alternative.

GAGELER J:   Which is first?

MR MERKEL:   By definition, the mandatory relevant consideration is the first question because the failure to take into account could have resulted in a different decision, but we say they are true alternatives, your Honour.

GAGELER J:   What do you say about A v ICAC, that we were taken to?

MR MERKEL:   Your Honour we say, first of all the context in which that arose is about a summons for ICAC and not on the subject matter that, on its face, was anywhere near the implied freedom.  So that was a bad case for this issue to be raised, but it is not conceptually confused to treat it in this way if the final decision complies substantively with the implied freedom.  That does not mean that the decision could not have been different and

more favourable to a person who had the implied freedom had it been taken to account – that is, the implied freedom sets a minimum standard and that is why there is no conceptual confusion in requiring the consideration.

By saying it confuses the outer limits of the power with what is required to be considered there seems to be an assumption that the decision would not be affected either way, but we say there is nothing confusing about approaching it in that way.  We say moreover the failure to take the implied freedom into account supports an inference that a decision could not and did not comply, the delegate did not try to justify the decision by reference to the implied freedom and there is no reason why the Court could be satisfied that it did comply because it is a failure to take into account what essentially is a systemic issue and we say that that is, on its face, evidence of a failure, and for the reasons we have said, there was an inadequacy of balance and it was very disproportionate.

They are the submissions we would wish to put, your Honours, and we would say for those reasons the appeal should be dismissed.  If your Honours please.

KIEFEL CJ:   Yes, thank you.  Solicitor-General for the Commonwealth, any reply?

MR DONAGHUE:   I will be quite short, your Honours - a few points.  First, your Honours will recall when I was addressing our alternative argument on question 1, which is the argument that assumes that section 15 does form part of the burden, I submitted that there was, as a matter of construction, inherent within section 15 a proportionality requirement and your Honour Justice Gageler asked me were there any authorities that bore on that question.

Specifically in the context of section 15 the answer is very little.  There is one decision of Justice Perram in the Federal Court in the case of Griffiths v Rose (2011) 192 FCR 130. We have not given it to your Honours because I am about to submit it will be of little assistance to you. It is a pre‑Li Case where there was a sanction decision under section 15 that was challenged on judicial review grounds that included a Wednesbury unreasonableness ground and Justice Perram analysed it as a Wednesbury unreasonableness ground and rejected the challenge.

It does not appear to have been argued in that case whether or not there was some stricter proportionality requirement inherent within the section and his Honour says nothing about that one way or the other, although I suppose it could be said in fairness had there been such a requirement, if his Honour had recognised such a requirement that would have been built into the decision, not specifically in the context of section 15 but in the context of evaluations of whether dismissals were harsh, unjust or unreasonable in the employment in industrial relations type context.

The Fair Work Commission has made decisions that proceed on the basis that a decision may be harsh – sorry, a dismissal may be harsh notwithstanding the existence of a valid reason for dismissal because it is disproportionate to the misconduct.  So, that is closer to the submission that we make.  In reaching that approach, the Fair Work Commission has relied on a decision of this Court in Byrne v Australian Airlines (1995) 185 CLR 410 specifically relying on the judgment of Justices McHugh and Gummow at 465 and if I could just read your Honours one line of that. Their Honours are saying:

It may be that the termination is harsh but not unjust or unreasonable –

and their Honours then note the overlap between the concepts and explain that it:

may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.

So, that is, we submit, a fairly closely analogous context.

GAGELER J:   Mr Solicitor, a decision under section 15 can be reviewed on the merits, I think, under section 33 of the Act.  Is that right?  Or is there some limited criterion?

MR DONAGHUE:   I think the answer is that a breach decision can be but the sanction decision cannot.

NETTLE J:   It goes to the Fair Work Commission.

MR DONAGHUE:   It goes to the Fair Work Commission instead.  There is an exclusion which my juniors might help turn up but there is an exclusion for one of those categories under the regulations under 33.

GAGELER J:   Then, in the Fair Work Commission are you saying it gets judged against this unjust or unreasonable criterion?

MR DONAGHUE:   That is my understanding of the position, your Honour, yes.

GAGELER J:   Which includes the proportionality analysis.

MR DONAGHUE:   Which includes on the basis of Justices McHugh and Gummow’s statements in Byrne – it includes the possibility that a finding of harsh dismissal would be made based on disproportionality between gravity of misconduct and sanction.

GAGELER J:   Thank you.

MR DONAGHUE:   On the question of the nature and extent of the burden imposed by sections 13(11) and 10(1)(a), the respondent’s submissions frequently proceeded upon the basis that the Commonwealth was advancing a test that was referred to as a “risk of harm” test as governing the operation of those sections.  That is not how we developed the submission and we respectfully endorse the analysis your Honour Justice Bell put to my friend about the way the phrase behaves in a way that upholds works. 

That, as your Honours will recall from our constructional submissions was the foundation for the evaluative judgment that we submit is called for.  It does not ultimately – or it cannot be simply reduced to just a risk of harm analysis which, in some respects, is borne out by your Honour Justice Edelman’s example or return to the example about the Secretary of the Department in a personal communication because while it is true, in a sense, that any statement, even to one’s partner at home at the end of a long day’s work might carry some risk of harm in the event of an acrimonious divorce, in our submission, to make a statement in the privacy of one’s home to one’s partner is not to behave in a way that fails to uphold the values of the APS, even if an acrimonious divorce happens down the track and some damage is done to the reputation of the APS.

Most of the overbreadth submissions that were made by the respondent that underpin the assertion that the scheme is unconstitutional proceed upon the basis that the sections are not to be construed as we submit that they are.  So if your Honours accept our submissions as to the nature of the test then, in our submission, your Honours should not have any difficulty in concluding that the regime operating in that way is justifiable in pursuit of the purpose that the respondent concedes is a legitimate purpose of promoting an apolitical APS.

I am not going to return to all of the history, but we do respectfully adopt your Honour Justice Gordon’s comments to my friend in relation to what one sees from the explanatory memorandum and the 1997 report.  It is just not right to say that Parliament was proceeding on the basis that it was narrowing the prohibition.  It was doing the opposite.  It was identifying a deficiency in the regime as it then existed.  The explanatory memorandum expressly says the new provisions are wider than the old regulation – and I took your Honours to the 1997 report that talked about the serious deficiencies that had been identified.

Very briefly, on the submissions my friend just made about the section 15 sanction decision, you were taken to a document at pages 272 and 273 of the further book of materials, which was the sanction decision and it was pointed out that it does not say anything about the implied freedom.  That is true.  It does, however, record at the top of 273 that the decision‑maker took into account a number of materials, including the submissions that were made, to which our friend referred.

So there would be a need for an inference to be drawn contrary to the statement in the reasons that those matters had not been considered.  The submissions made just a moment ago in relation to Miller and Wotton, with respect to our friends, did not really engage with the way the Commonwealth says that analysis should be conducted.  Our submission is that, one, if it is not possible to conduct the whole McCloy analysis at the level of the statute, because it is not possible to be certain, assuming the burden is wrapped up in the sanction, it is not possible to be certain that the sanction will not result in an unjustifiable operation, then our submission is one completes the analysis at the level of the statute by doing only what is necessary to address what the court was unable to do at the statutory level.

Your Honour Justice Nettle put it to me yesterday in terms that I adopted, which was one assumes that the statute itself had required in the facts as they exist the particular outcome, and then asks would that outcome be a justifiable outcome?

In our submission, the analysis in Wotton and Miller provides no warrant for this Court looking at a sanction and deciding for itself on what would be indistinguishable from a merits review whether some different or lesser sanction would have been sufficient in the circumstances of the case.  That would be quite a profound change in the way that judicial review has hitherto worked. 

In our submission ‑ and this is my final point ‑ Gaynor does not point in the opposite direction.  In the passage that your Honours were taken to at paragraph 80 which refers to Wotton and Miller, in our submission, should not be understood as treating those cases as suggestive that the constitutional limit is a relevant consideration in a Peko‑Wallsend sense.  And if that is what was meant, and I will not return to Miller, but the whole fairly elaborate discussion that Justice Brennan engaged in in Miller, would not really make sense.  The question would be did the decision maker think about the constitutional limit.  If not, decision invalid. 

One would not need to talk about where the edges of the power were aligning the edges of the power with the constitutional limit.  It would just be a different form of inquiry.  So, we submit that what those passages are saying is you might need to look at the constitutional limit in defining the boundaries of the power to be exercised, but they are not saying any failure to do so is necessarily a Peko‑Wallsend error. 

Your Honours, would you excuse me for one moment.  So, just to complete the answer I gave to your Honour Justice Gageler, section 33 provides that APS employees are “not entitled to review under this section” where the action “consists of the termination”, and in footnote 64 of our submission, we refer to the relevant regulations that underpin that.  If the Court pleases, those are our submissions. 

KIEFEL CJ:   Thank you, Mr Solicitor.  The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow in Sydney and in Melbourne.

AT 12.24 PM THE MATTER WAS ADJOURNED