Comcare v Banerji

[2019] HCATrans 50

[2019] HCATrans 050

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 WEDNESDAY, 20 MARCH 2019, AT 10.03 AM

Copyright in the High Court of Australia

MS B.J. TRONSON:   May it please the Court, I appear for the appellant.  (instructed by Australian Government Solicitor)

MR R. MERKEL, QC:   If the Court pleases, I appear with my learned friends, MS C.G. WINNETT and MR C.J. TRAN, for the respondent.  (instructed by Lander & Co)

MR S.P. DONAGHUE, QC, Solicitor–General of the Commonwealth of Australia:   If the Court pleases, I appear with MR C.L. LENEHAN and MS J.D. WATSON, for the Commonwealth Attorney‑General, intervening.  (instructed by the Australian Government Solicitor)

MR M.G. SEXTON, SC, Solicitor–General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MS F.I. GORDON, for the Attorney‑General for New South Wales who intervenes in the proceedings.  (instructed by Crown Solicitor’s Office (NSW))

MR C.D. BLEBY, SC, Solicitor‑General for the State of South Australia:   May it please the Court, I appear with my learned friend, MS L. GAVRANICH, for the Attorney‑General of South Australia, intervening.  (instructed by Crown Solicitor’s Office (SA))

MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, with MR N.T.L. JOHN I appear on behalf of the Attorney‑General for Western Australia, intervening.  (instructed by Solicitor‑General’s Chambers)

KIEFEL CJ:   The Court will receive the submissions of the Commonwealth and the respondent in relation to the notice of contention and hear further argument on whether arguments should be allowed in accordance with the notice of contention.

MR MERKEL:   If the Court pleases.  The argument in the notice of contention is set out, we would say accurately, in paragraph 3 of our proposed written submissions.  Sorry, there is one matter I omitted to mention before I start, your Honours.  In the respondent’s book of further materials in respect of this issue, a deed was inadvertently included in the material at pages 79 to 86.  With the consent of Comcare and the respondent, could we ask that that be removed and not regarded as part of the material?

KIEFEL CJ:   Is it confidential material?

MR MERKEL:   Yes, it is, your Honour.

KIEFEL CJ:   Yes, very well.

MR MERKEL: Thank you, your Honours. At paragraph 3 of our supplementary submission we have set out two main points of the argument that was put on the notice of contention. The first is that section 13(11) of the Act could not apply to the respondent in respect of her conduct because it should be interpreted consistently with the principle of legality and the need to avoid incompatibility with the implied freedom of political communication so as not to extend to anonymous communications the immediate context of which evidence no connection the Australian Public Service. Those submissions are summarised and set out in our written submissions at paragraph 17 to 18, 39 to 41 and 46.

We ask your Honours to note that in the Commonwealth supplementary submissions at paragraph 2 they accept the argument at paragraphs 40 to 41 of the respondent’s submissions is not new.  Can I ask your Honours to note that those two paragraphs are preceded by paragraph 39 which is to the effect that the construction that we are contending for is required by the two interpretive principles so that the construction we are contending for by reason of the two interpretive principles is accepted by the Commonwealth as not raising a new matter.

The second aspect of the argument is that the respondent’s termination was inconsistent with the implied freedom with which, as a matter of construction, any exercise of power under section 15 of the Act must comply and we have set out the more detailed argument in respect of that aspect at paragraphs 42 to 45 and 48 to 50 of the respondent’s submissions. 

The argument has two components.  The first is that, as a matter of construction, the impugned provisions require a nexus which cannot be established by anonymous communications – and I should say that was a central issue before the Tribunal and the central issue on the appeal today.

KIEFEL CJ:   I am not sure that is right.  Anonymity was certainly a matter that was discussed and dealt with by the Tribunal insofar as it related to the implied freedom.  But the issue, and the only issue, according to the references in the determination of the Administrative Appeals Tribunal before it was whether or not how the implied freedom affects the validity of the statutory provisions relied upon in relation to all conduct.  That was the issue. 

And what is being put against you now is that the notice of contention – although, itself, framed not terribly clearly – when you came to make your argument in relation to this matter, which was referred in from the Federal Court, raises another issue which involves questions of fact relating to the connection between the conduct of the respondent and the public service and that this affects how the Commonwealth – or Comcare – would have run its case before the AAT.  It is tolerably clear ‑ at least speaking for myself, Mr Merkel – it is tolerably clear how the matter was raised and run before the Tribunal from the Tribunal’s recitation of the arguments before it and the determination it made.

MR MERKEL:   Your Honour, we would hope to explain to your Honour that there were two issues before the Tribunal – I will need to come to that.  The first related to the validity of the decision, which was raised as a question of construction, and the second was that, if the decision was valid in the sense that the facts found that there was a breach by the respondent, then in that operation we say the provision is invalid.

GORDON J:   How does that sit with paragraph 12 on application on the appeal book page 8?

MR MERKEL:   The answer to that is that is only one part of the issue as stated.  I will take your Honour to the material, which is also set out in the agreed facts, which raised a question of invalidity.  I will take your Honours to it but, when your Honours see how the matter was conducted, the matter was conducted at both levels:  the validity of the decision and the validity of the section.  But I need to take your Honours to the material to show you how we get to that point.

KEANE J:    Mr Merkel, what about page 11, paragraph 38.1:

the only issue before the Administrative Appeals Tribunal is:

38.1whether or not the termination of the applicant’s employment . . . falls outside the exclusion in s 5A(1) of the Act, having regard to the implied freedom –

MR MERKEL:   That is correct, your Honour, but as I hope to demonstrate, having regard to the implied freedom was having regard to it as an interpretive principle in respect of the section, and having regard to it as a constitutional principle that can invalidate the section, depending upon its proper construction.

But I do need to take your Honours through the material, because the conduct of the case in this matter is all in writing.  So what actually happened was that the parties agreed on a statement of facts with an addendum, which I will take your Honours to, which is not set out in the Tribunal’s reasons, the applicant’s case was put in writing in submissions.  The respondent’s case was a written submission in response, and there was a reply.

The only issue raised on the evidence was whether the respondent had sent any tweets from her workplace, and that was the only issue that was contested.  So the answer to all of your Honour’s queries about the conduct of the case is to be found in the submissions.  And I hope to demonstrate, your Honours, that in fact the way the Tribunal dealt with the matter is it did deal with it at both levels, the validity of the decision in terms of whether the facts fell within it properly construed, and also the validity of the section ‑ ‑ ‑

KIEFEL CJ:   Mr Merkel, could I take you ‑ before you take us to the material, the submissions of the parties, could I take you to paragraph 41 in the AAT decision where the argument for the respondent, for Ms Banerji, is put in these terms:

The Code of Conduct cannot and does not reach the kind of political comment made, in the manner in which it was made, by the Applicant, and accordingly the exercise of the disciplinary power under the Code was inconsistent with the constitutional restraint on burdening the freedom of political communication and is therefore ultra vires.

Do you disagree with that as a correct statement of the respondent’s position before the AAT?

MR MERKEL:   It was not a complete statement of the respondent’s position, which can only be found in the written submissions, which I need to take your Honours to, because essentially what is being said here is that we have departed from the conduct of the case.  And what I would seek to demonstrate, to show your Honour, is that the submissions are within the four walls of the conduct of the case.

KIEFEL CJ:   Just so I understand where we are heading, do you say that the Tribunal dealt with the argument that you are now seeking to say was put because if you do, you would need to take us to where the Tribunal did it.  If you say that the Tribunal did not do it, then that is of course a matter which should have been raised in the Federal Court proceedings.

MR MERKEL:   Yes.  Your Honour, I will do that.  But at the end of the Tribunal’s decision, the Tribunal dealt with the question of construction, and said it could not be read down, apart from its literal meaning, but did not have to decide the reading down point, because in a phrase at the end said that the decision trespassed upon the implied freedom.

KIEFEL CJ:   That was the alternative approach in Wotton it was dealing with.  It is not dealing with the point that you are arguing now.

MR MERKEL:   Your Honour, it is correct to say that it did not deal with the construction point, in the sense that it decided that the section was so wide in its terms, it would cover any conduct and formed a view about the interpretation which is different from what the Commonwealth is putting, and different to what we are putting, which was a narrower view.  But it is because it did not decide that question, which we say was before it, that led to us filing the notice of contention.

KIEFEL CJ:   Well, this is a point that should have been taken in the Federal Court before the matter was removed into this Court.

MR MERKEL:   Your Honour, when we had the removal ‑ ‑ ‑

KIEFEL CJ:   If that was really the case.

MR MERKEL:   When the matter came on before his Honour Justice Keane, we asked for leave, which was granted, to file a notice of contention.  The first time, I think I am accurate in saying, that we heard there was an issue about the notice of contention was when the Commonwealth put its reply submissions in, but what we ‑ ‑ ‑

KIEFEL CJ:   Just to step back to where we were in relation to the AAT decision though.  So I am clear, are you saying that the AAT determined ‑ are you able to point anywhere in its determination, to where the question of the extent of the operation of the legislation and whether or not there was this nexus between the conduct and the parameters of the statute is addressed by the AAT?

MR MERKEL:   Your Honour, at pages 63 to 64 ‑ ‑ ‑

KIEFEL CJ:   Pages or paragraphs?

MR MERKEL:   Sorry, pages of the core appeal book.  It starts at paragraphs 124 onwards.  But can I make it clear, your Honour ‑ ‑ ‑

KIEFEL CJ:   That is the alternative Wotton argument. 

MR MERKEL:   Your Honour might be elevating what occurred at the AAT to a level that is not warranted, because the decision in the end was based neither on the construction of the section or invalidity.

EDELMAN J:   Your point, Mr Merkel, is essentially that there was an anterior issue of construction that the case could have been resolved entirely upon before one even considered the constitutional issue of the implied freedom.  But if that is right, and if that is the way the case was run, why was there no opposition to removal?  Surely the first response to an application for removal should be – would have been that, no this is a simple case of where the best issue is going to be construction and where we say the case could rise and fall upon a shorter point of construction.

MR MERKEL:   Two responses, your Honour.  The removal was as of right and so, therefore, there was no basis upon which we could oppose it.  But the second answer is that both the interpretive exercise and the validity of the Act exercise ‑ the interpretive exercise in respect of the proper construction and the validity of the Act both raised questions of constitutional law about how the implied freedom is to act as an interpretive principle as well as whether, on the construction of whatever the answer is, whether the section is valid.  But I still need to go back to the conduct of the case because essentially what is put here against us ‑ ‑ ‑

KIEFEL CJ:   Yes.  Well, take us to the submissions, Mr Merkel. 

MR MERKEL:   Thank you, your Honour.  Can I just indicate, your Honours – I will not take your Honours there, but the second part of our argument, which is that the nexus required between the conduct and the operation of the section, we say it cannot be established by anonymous communications and, we say on the findings made by the AAT, the respondent’s conduct lacked the requisite nexus such that the provisions cannot be held to apply to her case.

Can I just ask your Honours to note at pages 53 to 54 of the core appeal book at paragraphs 92, 93 and 94 and at pages 60 to 61 at paragraphs 114 to 116, the Tribunal made unequivocal findings on the material before it that support that factual argument.

KEANE J:   They said those things after paragraph 113, where they said:

On balance, we consider that Ms Banerji would have breached her duty of loyalty and fidelity owed to the Department had her tweets been open comment.  In that circumstance, the application of sanctions against her under the Code would have constituted a proportionate and appropriate –

response, et cetera.  The point is, then, their Honours – the Tribunal then goes on to say that because the comments were anonymous, the implied freedom is engaged, at least to some extent.  But, there is no question that they have concluded – not surprisingly given the way the matter was run – that, absent the implied freedom, there was a breach of a duty of loyalty and fidelity.

MR MERKEL:   Your Honour, with respect, anonymity was central to whether there was a breach.  And, at 116, the Tribunal made findings, which I will come to again, by relating them to the way the case was conducted.

KEANE J:   But, all this – 114 to 119 is all about leading up to the conclusion that the implied freedom had been unduly trespassed upon.

MR MERKEL:   Your Honour, that is by the section, but that conclusion can go as much to the question of construction – which is the anterior question because until the section is properly construed, one cannot get to whether it is invalid or not.  What the Tribunal did is found that this case trespassed on the implied freedom, formed a view of the section, which was its literal meaning, which the Commonwealth is not contending for here – the Commonwealth is putting a nexus requirement which was not an argument put in the written submissions but I will come to that in a moment – and then, at the end, found because on the literal meaning it covered all communications, whether open or anonymous, there was a trespass on the implied freedom but never actually resolved what the construction question ultimately was.

But, for our part, it is not the Tribunal’s reasons that are determinative of whether we are entitled to make the argument that we are putting here, it is the argument that is put against us is it is inconsistent with the conduct of the case.  I do need to take your Honours to how the case was conducted because there are written submission, and no oral submissions, so the answer to whether the objection that is being put by our learned friends is a good one is to be found in those submissions because that records the conduct of the case.  But, before doing so, can I take your Honours to the further matters at pages 1 to 5.

GORDON J:   What page is that, Mr Merkel?

MR MERKEL:   Pages 1 to 5 in the book of further materials, your Honour.  Can I ask your Honours to note at page 5, there is the applicant’s addendum to the agreed facts which does not appear in the Tribunal’s decision?

KIEFEL CJ:   I am sorry, did you say page 5?

MR MERKEL:   Of the further materials, your Honour.

NETTLE J:   The respondent’s further materials?

MR MERKEL:   Sorry, the respondent’s further materials, yes, your Honour.

KIEFEL CJ:   Page 5 is the transcript of proceedings.

MR MERKEL:   No, sorry, this is in the original book of further materials, your Honour.  Sorry, it is Comcare’s book of further material filed on 7 November which contains all the material that was before the AAT.  Page 5, after it sets out the agreed issue, which is recorded ‑ ‑ ‑

KIEFEL CJ:   Yes, that is what the Tribunal records.

MR MERKEL:   Yes, although it does not record what is set out in the last paragraph, your Honour.  I just want to take your Honours briefly to it, where it says:

In particular, the applicant agrees that if the termination was not invalid having regard to the implied freedom of political communication the termination which caused her injury was reasonable administrative action –

What I will endeavour to show your Honours is that ‑ ‑ ‑

KIEFEL CJ:   That assumes that the legislation applies, does it not?  Does it not proceed upon that assumption?

MR MERKEL:   No, your Honour, if the termination was invalid, the termination is invalid raised in the written submissions, invalid on either ground because it was not – did not fall within the section properly construed or if properly construed it fell within the section, the section was invalid.  So, the termination being invalid potentially raised both grounds and both grounds were argued.

KIEFEL CJ:   Is that not tantamount – is not the applicant before the Tribunal saying that she agrees that her termination was reasonable action under section 5A(1) unless she can establish that the implied freedom was breached?  That would be consistent with what the Tribunal records at paragraph 12 which you were taken to.

MR MERKEL:   We say, with respect, that is not the way the case was put to the AAT, your Honour.  The case was put to the AAT at both levels and invalidity of the decision raises both issues.  It was invalid if made under the Act and the Act did not apply to her conduct.

KIEFEL CJ:   Do you agree that invalidity, having regard to the implied freedom, necessarily requires the matters referred to in Lange and McCloy to be applied to the legislation to determine whether the legislation is invalid and, if it is, the termination then falls away because it follows that it too has no statutory force?

MR MERKEL:   I do accept that, your Honour, but I ask your Honours to note that the words “having regard to” are ambiguous because it is not whether the legislation is invalid because of the implied freedom, what the restriction was that was accepted by both parties is that the implied freedom was the issue to be determined but at the level of the interpretive principle and at the level of the invalidity of the legislation principle as well.  We say that is how it was put below.  It was not just an invalidity case.  So, can I move on, your Honours ‑ ‑ ‑

EDELMAN J:   In other words, your argument on interpretation would fail without the benefit of an additional added interpretive principle based on the implied freedom?

MR MERKEL:   Yes, your Honour, but what my learned friends accept is that our argument is not new insofar as it comes from paragraphs 39 to 41 of our written submissions, which are entirely directed to the interpretive principle, not to whether the section is invalid.

NETTLE J:   Can I just ask you one thing, Mr Merkel:  if you failed, as it were, at the application level ‑ I know you argue against that ‑ could you possibly succeed at the interpretive level?

MR MERKEL:   I am not sure what you mean by “the application level”.

NETTLE J:   The way in which it was decided by the Tribunal – namely, that there had been no breach of the Code by reason of anonymous communications and therefore it was not validly within the section to give the woman the sack.  That is the way it was decided.  You want to argue that not only was the application or decision beyond power because it was an anonymous communication but also that the Act is a contravention of the implied freedom if and insofar as it might be taken to apply to anonymous communications.

MR MERKEL:   Your Honour, with respect, the very last findings of the Tribunal are not that easily characterised as findings based on invalidity.

NETTLE J:   Just assume that they are to be taken as meaning that, the conduct was not such as to warrant the sack because it was anonymous.  If you were to fail on appeal in respect of that conclusion, could you possibly succeed on your proposed interpretation argument?

MR MERKEL:   Yes, your Honour, because the interpretation argument goes to the anterior point as to whether her conduct fell within the provision as we would put it should be interpreted, having regard to the implied freedom.  And having regard to the implied freedom, our argument at paragraphs 39 to 41 is that that requires a construction that excludes anonymous communications from falling within the section.

NETTLE J:   So the argument would be all anonymous communication is without the section?

MR MERKEL:   Anonymous communications fall outside the section.  They cannot fall within the section.

NETTLE J:   So no anonymous communication is capable of coming within the section would be the argument?

MR MERKEL:   Yes, that is right, your Honour, but the way in which the Tribunal made its findings on anonymous communications ‑ it actually defined them.  I will take your Honours to it.  I think it was at paragraphs 92 and 94, so that we are clear about what we ‑ it is page 53, paragraph 92.  What the Tribunal said is that the focus was:

on two categories of public comment:  open . . . and anonymous ‑

and treated references in the submissions to private communications as better characterised as anonymous communications “as defined above”.  And the above takes us back to paragraph 91, which refers to material:

posted anonymously, or using an ‘alias’ or pseudonym, and should bear in mind that . . . they do not identify themselves online as an APS employee or an employee of their agency, they could nonetheless be recognised as such.

So that what we say is, and the construction argument is based upon that the requirement of what we say is an immediate nexus between the conduct and the harm said to be flowing from breach of section 13(11) and 10(1)(a) is that anonymous communications are not capable of resulting in that harm if the person making the communication is not identifiable as a member of the public service.

KIEFEL CJ:   So your argument is it is not capable of harming the public service in its reputational aspects?  And this is the very area that the Commonwealth and Comcare say that Comcare would have adduced evidence if it had known that the matter was to be conducted on that factual basis.

MR MERKEL:   Your Honour, that is to be gleaned from the conduct of the case because we say it is a question of law that really is being determined here on the facts agreed, with anonymity being central to the issue of whether there was a breach, and central to whether the statute was valid.  But can I take your Honour – I must make that good by reference as to how it was put in the submissions.

KIEFEL CJ:   Yes, I think you were taking us to the further materials.

MR MERKEL:   I do ask your Honours to note the really important finding at paragraph 116 – I will come to that later in my submissions ‑ which is to the effect that anonymous comment cannot cause the consequences that would justify the operation of the section.  That is a central finding.

KIEFEL CJ:   And that is justification in the context of proportionality testing for the implied freedom in accordance with Lange, as appears from paragraph 117, which follows?

MR MERKEL:   Your Honour, that is right, but that finding is also the foundation, as I have said in my introduction, the foundation for why the question of whether the facts as found fall within the relevant sections is a question of law, which could not be affected by any additional evidence.

But insofar as evidence was called, the parties agreed to put both issues going to the invalidity to the AAT on agreed facts, and we say that it is the appellant that is resiling from that situation, not us.  But again, can I take your Honours now to the applicant’s submissions, which is in the respondent’s book of further material at page 41.

NETTLE J:   Just so that I am clear as you proceed, “anonymous” means incapable of being identified by any means, does it?

MR MERKEL:   At the time at which the communication is made, at the time of the behaviour – yes, your Honour, that is a fair way of putting it.

GORDON J:   Just so I am clear, that temporal connection is important to your argument, i.e. you only look at the time at which the conduct occurred?

MR MERKEL:   Critical, your Honour.  That is the central difference between the Commonwealth and ourselves.

NETTLE J:   So if there were another fact, say published by a third party the next day, which fortuitously identified or enabled a reader to identify the original publisher, that would still not be a contravention of the Act?

MR MERKEL:   If the republication arose from the behaviour of the public servant ‑ ‑ ‑

NETTLE J:   Just to say a fact was published by a third party which had nothing to do with the public servant, but by reason of its publication the reader of the public servant’s tweet was then able to identify her.

MR MERKEL:   We would say that the public servant’s conduct is not caught by the sections, your Honour, because the behaviour of the public servant which is critical and the requirement to uphold the values occurred on the previous day.  The fact of republication by a third party without authorisation or involvement of the public servant cannot bear upon ‑ ‑ ‑

EDELMAN J:   I think the example being postulated is one which would associate the applicant with the tweet, so a tweet which associated Ms Banerji with the Twitter handle user ‑ as I understand, you say if a tweet which gave that association occurred an hour after the relevant publication then it would remain anonymous, but if that tweet had occurred an hour before the relevant publication it would not be anonymous.

MR MERKEL:   Yes, your Honour, it is the behaviour of the public servant in failing to uphold, if I can just refer to it as the apolitical value, that is, the breach of the Code.

NETTLE J:   But surely the first publication would create the risk of discovery.

MR MERKEL:   There is always the risk of discovery, your Honour, but the risk, we say, is not the behaviour that is relevant.  The behaviour that is relevant is the publication that is anonymous.

NETTLE J:   But if you create a risk of people appreciating that you as a public servant are damning the policies of the department which you are employed to serve, is it not relevant to whether or not you are acting in accordance with the requirements of the Act?

MR MERKEL: Your Honour, everything that the Commonwealth is putting gives all the work to be done in these hypothetical situations in sections 13(11) and 10(1)(a), but there are other sections of the Act, for example, section 29(3)(b) of the Act, has a ground of termination where an employee has lost an essential qualification for performing their duties. So discovery in some of the hypothetical or more extreme cases may give rise to consequences in other sections of the Act.

GORDON J:   That might be so, Mr Merkel, but as I understand your submission, one could have a senior public servant make an off the record briefing to the press and you would say that that is anonymous and therefore it does not bite.  Two minutes later the press publishes it on some form of social media or otherwise or even on electronic news service, and the Act does not bite?

MR MERKEL:   No, that is not our case, your Honour, because that is not an anonymous publication.  If the person publishes comment to journalists with the intention of publishing or not publishing, their behaviour is not anonymous because they are recognised as a public servant.  Here we are in the ‑ ‑ ‑

GORDON J:   So the off the record briefing that you do not think falls within your category of a ‑ ‑ ‑

MR MERKEL:   No, because the person is identified as a public servant and given special status by the press as a public servant, so the behaviour of the public servant would be the communication in failing to uphold the values by the behaviour in question being disclosing ‑ ‑ ‑

KIEFEL CJ:   In any event, Mr Merkel, I think we were looking at the conduct of the case.

MR MERKEL:   Yes, your Honour.  Can I go back to that?  Your Honours, in our respondent’s book of further materials the submissions put of the applicant are at page 40.  It starts at 41.  Can I just take your Honours quickly through the relevant sections?  At 6(a) at page 41, there is the anonymity issue raised.  At 6(c), the only question of fact is set out about the possibility of a tweet being carried out in work hours.  At paragraph 9, we start with the contention that:

any construction of the Code as a statutory instrument . . . must be consistent with –

and they introduce:

the ‘principle of legality’ –

and:

The Constitutional implied freedom –

as well as section 15A.  So, we are straight into the question of construction.  At paragraph 10:

The Code of Conduct cannot and does not reach the kind of political comment made, in the manner in which it was made, by the Applicant, and accordingly the exercise of the disciplinary power . . . was inconsistent with the constitutional restraint –

that is, construction of a section having regard to the constitutional restraint.

KIEFEL CJ:   Perhaps you could just keep to what has actually been said in the submissions.

MR MERKEL:   Yes, your Honour.  The “principle of legality”, set out at paragraph 12, which is onwards to 15, which is the principle saying that - 15:

This principle is relevant to how the Code is construed and whether its construction extends to removing the common law right of employees to engage in private political communication -

which the Tribunal treated as anonymous communication.  Then the constitutional segment is referred to at paragraph 17.  These are the critical sections of the submission because these were ‑ ‑ ‑

KIEFEL CJ:   They are, are they not?  Paragraphs 17 to 54 address the implied freedom and how they affect the validity of the Code.

MR MERKEL:   We say the validity of the decision as well as the Code by reason of construction, your Honour, because ‑ ‑ ‑

KIEFEL CJ:   It is the validity of the decision through the application of the implied freedom to the Code.

MR MERKEL:   With respect, we would say that there were two issues raised, your Honours, and two issues dealt with by the – two issues considered by the AAT.  But at 17 it says the same doctrine precludes:

a Commonwealth statute being accorded a construction . . . that would exceed the limits of the legislative power i.e. the Public Service Act 1999 cannot explicitly limit freedom of political comment and cannot achieve the same outcome via the manner in which the legislation is:

(a)       construed (the Legislative restriction); or

(b)       applied by the Executive (the Executive restriction).

Then the main contention is put that:

The Applicant contends that the Public Service Act 1999 and its statutory Code of Conduct cannot limit or burden an employee’s common law right or freedom to make the kind of political comments made by the Applicant, in the manner in which she made them; nor does it permit the Executive to apply the Code in a manner that has the same outcome.

KEANE J:   Yes, it is “cannot”, not “do not”.  The contention is that they cannot do it, not they have not purported to.

MR MERKEL:   Your Honour, that is right, but the way in which the interpretive principle is put at paragraphs 39 to 41 is that the implied freedom requires the interpretation that has that consequence.  Then can I go to paragraph 33.  It is to be noted that in the present case the applicant challenges both the construction of the statutory provisions, the Code of Conduct, and its application by the respondent.  At paragraph 68, which is at pages 58 to 59, proposed questions are:

Did the Code of Conduct in the Public Service Act 1999 provide a legal basis for the termination of the Applicant’s employment in the circumstances of her case, having regard to the constitutional freedom of political communication?

We say that is a question of construction.  Sorry, the first question is the constitutional question but the second question:

Was it a valid decision . . . to find a disciplinary breach and impose the sanction . . . having regard to –

the implied freedom, is the very issue that we raise as to whether the decision was valid.  So we say both grounds of invalidity set out in the addendum to the agreed facts are raised specifically as questions in paragraphs 68(1) and (2).

Can I next take your Honours to Comcare’s written submissions in response, which are at page 87 of the respondent’s book of further materials, and at paragraphs 20 to 22 those issues raised in 17 to 18 and the ultimate questions are addressed and traversed.  What Comcare is saying in paragraph 20 is it accepts the implied limit:

places limits on the capacity of any Commonwealth statute to restrict the right . . . Nor can the statute be applied in a manner that has the same outcome.

Then, addressing paragraphs 17 and 18 of what I have just taken your Honours to of the respondent’s submissions, Comcare says:

As the question of the lawfulness of the statute and the lawfulness of the exercise of the statutory power in the specific case raise conceptually different issues it is necessary to deal with them separately.

“Conceptually different issues” are the two issues which we say were addressed in Ms Banerji’s submissions.  Then, at 22:

The Respondent contends that the Code of Conduct provided for in the PS Act, properly construed, is within the legislative competence of the Commonwealth Parliament.  Further, the specific exercise of the power fell within the authority conferred by the Parliament on the Delegate and constituted a lawful exercise of the power.  Consequently, the decision to terminate constituted reasonable administrative action taken in a reasonable manner.

Can I ask your Honours just in that context to have a look at paragraph 96 of the Tribunal’s decision which is in the core appeal book at page 54.

KIEFEL CJ:   Just before you do, whilst you are on Comcare’s written submissions, where does it deal with the question of the exercise of the power and the extent of the power as a matter of construction?

MR MERKEL:   It comes up at 60 to 62, your Honour, but I will take your Honours through to that.  The main paragraphs ‑ ‑ ‑

KIEFEL CJ:   That is an alternative submission to the validity question which the Tribunal deals with shortly because it is focused on the implied freedom and the validity of the statute?

MR MERKEL:   Yes, that is so, your Honour.  Paragraph 96 of the Tribunal’s decision at page 54, says that:

For its part, Comcare appeared to assert that the Code applied with equal force whether the expressions were open or anonymous.  It is convenient therefore for the Tribunal consider the application of the implied freedom to comment falling into each category, even though, of course, none of Ms Banerji’s tweets fell under the rubric of open comment. 

KIEFEL CJ:   So that is looking at how the implied freedom would deal with conduct of any sort? 

MR MERKEL:   Yes. 

KIEFEL CJ:   That is consistent with a consideration of how the implied freedom works on a statute? 

MR MERKEL:   But in the context, your Honours, the two alternatives that were placed before the Tribunal for decision, the construction of the statute having regard to the implied freedom and, on the basis of that construction, whether the construction was incompatible with the implied freedom and both of them rose from the essential element, was the decision invalid on either ground having regard to the freedom of political communication.  I was next going to take your Honours to paragraph 33 ‑ ‑ ‑

KIEFEL CJ:   Of? 

MR MERKEL:   Sorry, your Honour.  I was on Comcare’s submissions – sorry, 35, your Honour, at page 92:

to the extent that statements and communications by public servants outside of work fail to uphold the APS Values, by, for example, compromising the APS’s reputation as an apolitical public service or in some other way harming the integrity or reputation of the public service, those statements can constitute a breach of the Code of Conduct.  Public Servants are otherwise free to make whatever statements (political or otherwise) they choose outside of work.

That goes directly to the question of the Code of Conduct and it is ‑ ‑ ‑

GORDON J:   But it goes to - in the context of looking to the way in which the statute operates in the context of the implied freedom. 

MR MERKEL:   We say having regard to the implied freedom, how the statute is to be construed.  This Court has said on so many occasions that in any implied freedom case, there is always the anterior question of the proper construction of the section.

KIEFEL CJ:   Well, anyone could accept that Mr Merkel, but that is not the process that you are undertaking.  The process of construction you are undertaking is for an entirely different purpose. 

MR MERKEL:   Well, your Honour, paragraph 60 goes straight back to the question of construction again as the alternative basis on which the proceeding is - the decision is said to be invalid, where Comcare says:

However, if the Tribunal considers it necessary to consider the question of whether the decision of the Delegate was ultra vires, the Respondent submits that the decision of the Delegate was clearly open to her and supported by the legislation -.

and then goes on to deal specifically with the construction question.  The section says “uphold at all times the APS values”.

KIEFEL CJ:   This is the residual question that really was not dealt with. 

MR MERKEL:   It was not ‑ ‑ ‑

KIEFEL CJ:   It fell away. 

MR MERKEL:   In the decision, yes, your Honour, but it did not fall away as the issues that were put for decision by the Tribunal.  We say that that was then raised, but we then go to our reply submissions, your Honour, where the point is again taken up in paragraphs 6 and 7.  This is at page 99, paragraph 6.  They go to anonymity and we say that this was the central issue raised in the case, that because of the anonymity, as the Tribunal ultimately determined it to be, there could not be – it was not capable of constituting a breach.  The other response is at paragraph 11 at page 100 which says:

Public servants have the full rights as citizens including the right to criticise the government or its policies as long as they do not do so, explicitly or implicitly, in an official or assumed official capacity -

Again, when they say the applicant did none of these things, that is an argument as to why her conduct does not fall within the section properly construed, having regard to the implied freedom.  So we say, your Honours, that both questions were fairly put before the AAT in a way that is far less precise than would have been the case if there were pleadings.  But they were both raised in the conduct of the case in the submissions.

The Commonwealth’s objection that Comcare would have put on evidence had the argument been formed as in the notice of contention we say should not be accepted.  Can I ask your Honours to note that the Commonwealth argument and the respondent’s argument both do not accept the argument, or the view put by the AAT, which has been supported here by Western Australia and to a certain extent South Australia, that the literal construction operates.

KIEFEL CJ:   Mr Merkel, how do you state the question of construction for the Court?  What is the question?

MR MERKEL:   We have endeavoured to state it, your Honour, in paragraph 3 of our supplementary submissions.  We say the argument has two components, your Honours.  One is a question of construction, which is a question of law on which no evidence ‑ ‑ ‑

KIEFEL CJ:   Well, what is the question because that is a melded submission?  What is the question of construction you take out of that, that stands apart from the question of validity of the statute, having regard to the implied freedom?

MR MERKEL:   The question, your Honour, is whether what I will call the textual tools, the context, purpose and legislative history would require that there is an immediate connection between the behaviour that constitutes failure to uphold the values and the conduct in question which, in respect of anonymous communications, cannot fall within that interpretation of the section.

KIEFEL CJ:   That is to say it is concerned with the scope and operation of the Act?

MR MERKEL:   Yes, your Honour, having regard to the implied freedom.

KIEFEL CJ:   I thought it was an anterior question – you had not got to the implied freedom yet.

MR MERKEL:   Well, your Honour, we go to the implied freedom as an interpretive principle and that is exactly how it was put before the AAT, and exactly how it was put in our written submissions.  But the ultimate question is, is the Code of relevant provisions, the Code of Conduct breached by communications that are anonymous in that the immediate effect does not make the Australian Public Service status of the person communicating identifiable.

NETTLE J:   That is not the question of construction, is it, or is it?

MR MERKEL:   That is the ultimate question, your Honour ‑ ‑ ‑

NETTLE J:   Yes, I know it is the ultimate ‑ ‑ ‑

MR MERKEL:   ‑ ‑ ‑ but the question of construction, which we say, is a contextual construction which the Commonwealth and ourselves appear to be in agreement on, except we have a narrower view and that is that, on the proper construction, the immediate context is to require some connection.

KIEFEL CJ:  Well, it is section 13(11) that you are construing, is it?

MR MERKEL:  Yes, your Honour. We are construing section 13(11) in its operation on section 10(1)(a) ‑ ‑ ‑

NETTLE J:   And the argument is that, upon its proper construction, it is incapable of applying to anonymous communications, is that it?

MR MERKEL:   As such, yes, where the behaviour in question consists of anonymous communications.  That is so, your Honour.

EDELMAN J:   But you only get there on that construction point if you are right about the implied freedom, albeit using the implied freedom as an interpretive principle.  In other words, if one put to one side the implied freedom, would you accept that your construction would not be available?

MR MERKEL:   Your Honour, it is not available on the way the case was conducted if it does not get there via the interpretive principle of legality and the implied freedom.  So I am answering yes to your Honour.

KIEFEL CJ:   I do not think that was a question.

MR MERKEL:   The answer is yes, your Honour.  If we cannot have our construction on the basis of the implied freedom, we cannot succeed.  It is having regard to the implied freedom that is the essential element of our construction argument.

KIEFEL CJ:   And how do you apply the implied freedom so that the subsection does not apply to anonymous communications?  You are reading it down.  That is really what you are doing, are you?

MR MERKEL:   Your Honour, we would prefer to say we are construing it having regard to the normal principles of construction and one of the principles which we will take your Honours to in due course, if we are able to, is that the legislative history would show that no mischief was identified in respect of anonymous communications but rather the legislative history would show that the section was not intended to operate in these circumstances and we have tried to summarise what that demonstrates at paragraph 38.

KIEFEL CJ:   That might be relevant in any event to the implied freedom.  We can put that to one side.

MR MERKEL:   Yes, your Honour, but we say that to get to the implied freedom question one has to construe the section and there are three ‑ ‑ ‑

KIEFEL CJ:   Yes.  You have said it is anterior.  I have understood that.

MR MERKEL:   And the problem we have in respect of our learned friend’s application is that three possible constructions have been put to the Court:  one is the literal construction; two is the Commonwealth’s, what we call “broader contextual construction”; and, three is our narrower contextual construction. 

The essential difference between us and the Commonwealth concerns publications such as anonymous publications which cannot have the impact on the public service’s reputation or being apolitical because we say anonymous communications are in the realm of public discussion of political matters and we say are not intended to be caught by the section and the legislative history offers fairly strong and cogent support for that.

KIEFEL CJ:   Mr Merkel, do you have any further submissions in relation to the notice of contention and the way in which the matter was argued below?

MR MERKEL:   Yes, your Honour.  Can we direct your Honour to the paragraphs in the Tribunal’s decision which we say addresses these issues.  I will give your Honours the paragraphs.  Paragraph 120 at pages 61 to 62 of the core appeal book.  Paragraphs 124 to 127 of the core appeal book at pages 64 to 65 where the Tribunal said at paragraph 128 at page 64 it was unnecessary to resolve the question of construction, and we say that the notice of contention advances the ground that was before the Tribunal but which it did not ultimately resolve.

KIEFEL CJ:   That brings us back to the question of why, if the Tribunal had not addressed the question you are now seeking to raise, this was not raised in the Federal Court before the matter was removed, because it was removed on the basis that there was one issue relating to the implied freedom and a pure question of law, as section 44 of the AAT Act allows for.

MR MERKEL:   The only response I can give to your Honour is that it was raised at the directions hearing as a notice of contention and there is no ‑ ‑ ‑

KEANE J:   Well, no, that is not true.  That is just not true, Mr Merkel.  What you said at the hearing is that you had not yet turned your mind to whether there needed to be a notice of contention, but you asked to be allowed to put one in.  There was no suggestion that you were going to make a contention for anything other than an argument that may not have been addressed by the AAT as support for its conclusion on the question of law that was sought to be removed by the Commonwealth.

MR MERKEL:   That is correct but, your Honour…..it must have appeared on the transcript that we had not turned our mind to it.  We did in the following seven days and filed a notice of contention and no objection was taken to it until we got ‑ ‑ ‑

KIEFEL CJ:   That is because the terms of it were entirely unclear until your written submissions were filed in this Court, to which the Commonwealth immediately responded.

MR MERKEL: Your Honour, what we would say is if we are right and it is a question of law and if there was some procedural defect, we would say no prejudice is suffered if we are right in our primary submission. But can I just conclude our submissions, your Honours. We say that the underlying conduct of Ms Banerji as agreed and as found by the Tribunal, ultimately our contention is that it is incapable of contravening sections 10(1)(a) and 13(11) on their proper construction. Having regard to the implied freedom, we say where the facts are incapable of satisfying the statutory language is a question of law that depends upon the proper construction of the statute and that is the issue raised by the notice of contention and we say was the issue raised before the Tribunal, albeit that it did not decide it. If your Honours please.

KIEFEL CJ:   Yes, thank you.  Solicitor‑General for the Commonwealth.

MR DONAGHUE:   Your Honour, can I ask Mr Lenehan to address your Honours on this point.

MR LENEHAN:   Your Honours, the issue is new and it raises questions of fact that Comcare has had no opportunity to address.  Your Honours have seen the issue described as “the only issue”, which appears in paragraph 38 of the statement of agreed facts which was reproduced by the Tribunal at core appeal book 11.  The words “having regard to the implied freedom of political communication” are the important words there.  They show, your Honours, that if there was in fact an anterior question of construction without having regard to the implied freedom, then it was not one that the Tribunal was ever going to get to on that agreed issue.

Rather, as your Honour the Chief Justice said, which we embrace, the assumption is that there was going to be a requirement to look to the statute through the lens of Lange and the respondent had to succeed on that argument.  Now, we accept that the Court should have regard to the actual conduct of the case.  We also accept that there was an argument put in the Tribunal which can be described in broad terms as a construction argument but it is that kind of construction argument.

KIEFEL CJ:   Sorry, what do you mean “that kind of construction argument”?

MR LENEHAN:   Looking to the statute, seen through the lens of Lange.  There is no broader or other anterior question of construction in issue.

KIEFEL CJ:   What do you say the Tribunal was addressing at the conclusion of its reasons and the paragraphs on which Mr Merkel relies?

MR LENEHAN:   It is addressing the Wotton ‑ ‑ ‑

KIEFEL CJ:   The alternative argument.

MR LENEHAN:   Yes, it is.  Can I show your Honours the crucial part of the written submissions?  Mr Merkel has taken your Honours to them.  He has missed what is really the central aspect of his client’s argument, so if you go back to the further book and go to pages 53 to 54.  This is what it all comes down to.  So, you see it is headed:

The application of the Lange tests to the APS Code of Conduct: ‑

It is that sort of analysis that is being undertaken here.  Paragraph 48 gives your Honours the key to what is happening:

If the Code of Conduct can extend to prohibiting the Applicant’s participation in private communication, debate and commentary . . . then it burdens the freedom of political communications –

This whole submission is put on the basis not of some special carve‑out for anonymous conduct, it is put on the basis of a distinction between things that are described as “private” and things that are described as “public”.  You see that again in paragraph 50 when the point is made:

If the Code did extend to the private political communications of an APS officer –

and continues.  Now, the point that is being made your Honours see in more detail on the next page at page 54 and then paragraph 52 and then 53.  So, 52:

The Code is about regulating the conduct of APS officers in that capacity. 

In that public capacity:

It is not about regulating their personal political beliefs –

And even more clearly, more detail is then given to that in the next paragraph:

The Code may legitimately regulate public political communications by APS officers where that communication would involve the use of Commonwealth resources or the disclosure of confidential departmental information.

That seems to have in mind some idea of misuse of public office:

It may legitimately regulate public communication in which an APS officer seeks to rely on their office as a basis for, or to lend credibility to, their public statements –

Now, the reference there to Gaynor is also important.  If your Honours go back to page 47 you will see that this is at the partial paragraph that appears at the top of the page, this is a discussion of the facts of Gaynor and we emphasise Mr Gaynor:

cited his own experience in the army as the basis for his views.

Those are the attributes that are being relied on to say this kind of communication was potentially public communication to which the Code applies; we, the respondents, distinguish that from a different category which they label “private” communications to which the Code cannot apply and the reason that it cannot apply is then revealed starkly by the very next paragraph 54 which is the entire case:

By its actions in dismissing the Applicant, the Commonwealth has impermissibly trespassed on the constitutionally forbidden ground of personal political communication.

So, it is that category that is said to be ruled off limits by what is described as an application of the Lange test to the APS Code of Conduct.

GAGELER J:   Mr Lenehan, can I just ask you about paragraph 116 of the Tribunal’s reasons?  It was referred to by Mr Merkel.  There is a sentence, I think it is the third – the fourth sentence in that paragraph:

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

Are we to take that as a finding of fact?

MR LENEHAN:   It appears to be, as her Honour the Chief Justice said, an observation that is made in the course of applying the Lange analysis.  So, it may in, I suppose, a broader constitutional fact – idea, be that kind of finding.

GAGELER J:   If it is a constitutional fact then it is also a legislative fact. The difficulty I have is then in light of that fact if we treat it as a fact seeing how it could be said that there is a breach of section 13(11).

MR LENEHAN:   Yes.  Can I say this?  That was not the argument to which Comcare understood itself to be responding to.

GAGELER J:   I fully understand that.  The difficulty is we have this sentence and I need to know what to do with it.

MR LENEHAN:   Your Honour, in my submission, that does not detract from the point that I am seeking to make, that is, this argument, the argument that I have just shown your Honours by reference to the written submissions, and which also appears clearly from the very paragraph that Mr Merkel took your Honours to in reply which is a condensed version of the same thing, depends crucially on the notion of the distinction between “private” and “personal” and this additional element which is now put is a matter on which we would have potentially sought – rather, Comcare could have sought the opportunity to adduce evidence on.

EDELMAN J:   The sentence that Justice Gageler has drawn your attention to was challenged by you – by the Commonwealth in the Federal Court, was it not?

MR LENEHAN:   I believe that is so.

EDELMAN J:   That was one of your grounds of appeal was that that finding of legislative fact was incorrect, ground 1b.

MR LENEHAN:   Yes, that is so.

GAGELER J:   So, is that before us?

MR LENEHAN:   It is – but, in the area of the implied freedom analysis, yes, and not on the free‑floating anterior question of construction.

GAGELER J:   It is rather artificial. 

MR LENEHAN:   I have alluded to this already.  The real question that we have tried to identify as the essential factual issue, the factual leap, is related to that effect on the public service – does it cause adverse effects on the APS?  In circumstances where the case as put below was drawing a distinction between personal and private, the question of whether there was some adverse effect more generally, necessarily caused by anonymous conduct, was something that we would have wished – or Comcare would have wished potentially to adduce evidence on. 

Can I show your Honours – there are in the materials before the Tribunal hints of how that might have been done – if I could show your Honours part of the book of further materials and specifically the complaint of Mr Logan.  So, that appears at page 17 of the book of further materials.  If I could direct your Honours within that complaint to page 20, under the heading, “Issues”.  Mr Logan, in that paragraph, refers to their being:

a serious issue of trust around –

Ms Banerji’s:

activities in social media channels.

That was on the basis of what he describes earlier in the letter, on page 17, as his strong suspicions that Ms Banerji had been using her:

Twitter handle . . . to post often highly critical posts about –

not only the government and government policy but also the departmental staff.  So, the erosion of trust to which Mr Logan was referring could only really have been internal – how Ms Banerji was being perceived by her colleagues and her superiors, albeit on the basis of suspicion.  It illustrates, in my submission, the capacity for such comments to affect the functioning of the APS, even when they are made without putting one’s name to them and even when they are, at that stage, only suspected.

We draw attention to that to illustrate that this was an area which could potentially undermine the relationships between officers who comprise the APS, so in that sense affect the functioning of the service.  Mr Logan’s letter also, over the page, on page 18, extracts an aspect of the guidelines.  You see that at about line 10, where he said ‑ ‑ ‑

NETTLE J:   Could you speak up just a little bit, please?

MR LENEHAN:   I am sorry, your Honour, yes.  So, line 10, he starts – there is a paragraph:

As a rule of thumb, irrespective of the forum, anyone who posts material online should make an assumption that at some point their identity and the nature of their employment will be revealed. 

We have canvassed in our written submissions that issue of the possibility of later revelation and harm.  It illustrates that point that your Honour Justice Nettle raised with Mr Merkel and it also, more particularly, illustrates that there was no evidence before the Tribunal and is no evidence before your Honours as to the magnitude of that risk ‑ for example, from an IT expert

Your Honours simply do not know that.  The reason we do not know that is because that was not an issue that we appreciated was being put below and was not an issue that Comcare had the opportunity then to adduce evidence on.  In that same area, Comcare could have adduced evidence from senior public servants ‑ we have referred to this in our further written submissions – as to the possible effect of that exposure that that might cause to the APS, its reputation or its integrity as an institution.

So that is how we identify the prejudice that is caused to Comcare by the way this has proceeded.  That is the principle basis upon, as your Honours have seen, we say that the notice of contention should not be allowed to be relied on.

GAGELER J:   Mr Lenehan, we are to proceed ‑ is it on an assumption or on a fact that an anonymous communication can in fact adversely affect the integrity and good reputation of the APS?

MR LENEHAN:   I think your Honours are proceeding on an assumption as to that matter, yes.

KIEFEL CJ:   What assumption?  What is the assumption?

MR LENEHAN:   The case that is put against us says when one has anonymous conduct that, by definition, cannot affect adversely the APS.

GAGELER J:   When you say “by definition”, I think it is cannot in fact.

MR LENEHAN:   Yes.  Perhaps I should be looking at Mr Merkel’s written submissions.

GAGELER J:   There is a difference between saying that section 13(11) involves some implied carve-out and saying that, in its terms, it cannot be met. One is a question of pure construction; the other is factual application.

In addition to that question of reasonability or proportionality of the penalties those sanctions are reviewable under section 33 of the Public Service Act, as are the findings of the breach of the Code in this kind of case by the Merit Protection Commissioner.  I do not need to take your Honours to these but it is clauses 5.22 to 5.24 of the public service Regulations 1999.  They are at volume 2, tab 7, but your Honours do not need to look at them at this time unless the sanction is termination, in which case the provisions of the Fair Work Act 2009 are applicable. Those provisions require a consideration, amongst other things, of whether the termination was harsh, unjust or unreasonable. So again, this would effectively involve a review of both the finding as to breach and the penalty. The Fair Work Act provisions are at volume 2, tab 5 – but again, your Honours, I do not need to go to them. 

So we are also proceeding on the assumption that procedural fairness was accorded to the respondent in relation to the finding of breach of the Code, and in relation to the imposition of the penalty under section 15. Then, turning to sections 10 and 13 – I will not repeat them because your Honours have been taken to them, section 10(1)(a) and section 13(11), so if I can look at those in the context of the formulation set out in McCloy.  Again, your Honours have been taken – it is in volume 5 at tab 30, but it may be accepted, we would say in this case, that the two provisions may, in some circumstances, effectively burden the implied freedom although they do not target political communications generally, and they do not prevent the expression of political views in all situations.

Both the Commonwealth and the respondent seem to accept that it is only where there is some nexus or connection to the public service that political communication will be caught by the provisions.  It is hard to be dogmatic about particular cases.  It might be thought, for example, that a public servant who was a member of a local branch of his or her political party, that that would not cause a problem.  On the other hand, if he or she was the branch president, making statements critical of government policies, government ministers in the local paper that might raise different considerations. 

As to whether the purpose of the law is legitimate, in the sense of being compatible with the maintenance of the constitutionally prescribed system of representative and responsible government, it must, we would say, be a legitimate purpose to ensure that public service functions are carried out in an apolitical and impartial manner, and that its integrity and good reputation are preserved.  The respondent seems to accept at paragraph 55 of her submissions that a law pursuing that purpose would be compatible in the relevant sense.

As to the question of whether the provisions are suitable in terms of the McCloy formulation, there is an obvious, we would say, rational connection between this legitimate purpose and the requirement that public service employees conduct themselves in a way that enables the public service to function as an apolitical and impartial body and ensures that the public service is seen to operate with integrity and to maintain its good reputation.

As to the question of whether the provisions are necessary, it is hard to see what reasonably practical alternative there is to the requirements imposed on public service employees to uphold the relevant values if those values are to govern the operation of the public service.

Finally, in that McCloy formulation, on the question of whether the provisions are adequate in their balance, the burden imposed on some political communications has to be weighed against the important values of ensuring a public service that functions in an apolitical and impartial manner and is publicly seen to operate in that fashion.  The importance of that legislative purpose would, we would say, justify a sizeable burden on the implied freedom although, for the reasons that we have already given, the burden here is, we would say, not significant.

In many ways the respondent’s real complaint in this case is not about the validity of sections 10 and 13 but the finding of the breach of the Code of Conduct and the penalty imposed for that breach, given the situation that the material posted was not done under the respondent’s own name.  But those two issues are really separate from the validity of the relevant provisions.          

The finding of the breach of the Code was, as we have already noted, open to review under the Public Service Act and in this case also effectively in the Administrative Appeals Tribunal by reason of section 64 of the Safety Rehabilitation Act and the penalty imposed in this case, because it was termination, was open to review in the Fair Work Commission which would, as we have already noted, involve a review not only of the finding of breach but also of the penalty.

This analysis, we would say, reflects the Court’s decision in Wotton.  I do not think I need to take your Honours to it, you have been taken to the relevant passages – volume 8, tab 43 - where the relevant provision of the Corrective Services Act (Qld) allowed the Parole Board to impose conditions that the board considered reasonably necessary to ensure the prisoners could conduct or to stop the prisoner committing an offence.

At paragraphs 23 and 24 to which the Commonwealth Solicitor‑General took your Honours, Chief Justice French and Justices Gummow, Hayne, Crennan and Bell noted that if the board’s power or discretion was susceptible of exercise in accordance with the implied freedom, then the provision was effective in its terms, and those members of the Court later found, at paragraph 33, that that was so in that case.

So, in those circumstances, the question of whether certain conditions imposed by the Parole Board exceeded the power granted to the board by the valid statutory provision was one for judicial review, and we would say that similarly in this case that, assuming for the reasons we have given that the statute is valid, then the question, the finding of the breach or the penalty were matters for review, reviews that were available, but in this particular case it has taken another route and those avenues of review have not been pursued.  But the real question is the validity of the relevant provisions of the statute.  For the reasons we have given, we say that the Court confined validity in this case and that means that it is not necessary to proceed beyond that particular finding.

NETTLE J:   If the Commonwealth Solicitor‑General is right that the penalty imposed must be proportionate to the offence or at least the contravention of the Act, and if it were the case that the penalty imposed in this case were disproportionate but that has not been reviewed on appeal because no appeal was taken against it, we are really not in a position to say whether the Act upon its proper construction allows for – in allowing for dismissal in the event of a contravention of the kind which occurred here unjustifiably burdens the implied freedom, are we?

MR SEXTON:   Your Honour, we would say that it is not apposite here to look at section 15 at the penalty section but at sections 10 and 13 and if those provisions are valid then we would say the Act is valid.

NETTLE J:   But if they are not and if the Commonwealth Solicitor‑General is right in argument in saying that there might arise the situation where one cannot say certainly that in all its possible applications the Act will not possibly infringe the implied freedom, then one must approach it on a case‑by‑case basis and ask does it infringe the implied freedom by allowing for a proportionate penalty of dismissal for a conduct of the kind which occurred in this case.  We are not in a position to answer the question because we do not know with certitude, do we, or are we to assume that the penalty that was imposed in this case was proportionate?

MR SEXTON:   That is so, but that is, as I understand it, the Commonwealth Solicitor‑General’s, in a sense, second argument.

NETTLE J:   It is.

MR SEXTON:   But his first argument is the one, in a sense ‑ ‑ ‑

NETTLE J:   That is the only one you are interested in.

MR SEXTON:   It is - that we have just put.  But if one looks at – that is why I say section 15 is not relevant to that question.  It provides a wide range of possible penalties and the way to test those is by review, internal review, or by the Fair Work Act review, or possibly by judicial review and that is in accordance with Wotton.  We would say that your Honour just will not get to that particular question.

NETTLE J:   Yes, right, thank you.

MR SEXTON:   Unless there is anything else, your Honours, those are our submissions.

KIEFEL CJ:   Thank you.  Solicitor‑General for South Australia.

MR BLEBY:   If the Court pleases.  South Australia addresses only question 1 on the notice of appeal.  We address the compatibility testing of the law from paragraph 25 of our written submissions and we address, in particular, the purpose of the law because while the question itself does have a statement of purpose built into it, it is of course for the Court to construe the purpose, notwithstanding the statement that the parties may have landed on.

The construction task of identification of purpose or purposes of a statutory provision of course requires identification of the mischief or mischiefs to which the law is directed.  As has been noted today by your Honour Justice Gageler, and also, your Honour, elsewhere, the starting point is a statement of any object in the statute which may have to be illuminated by statutory context, particularly if the object is in some degree ambiguous.

Now, section 3A is the critical object that has been under consideration, and while it is not ambiguous it is general, in particular, in the words “effective in serving the government”. The object – said object, in our submission, is given context in section 10(1), and section 10(1)(a) in particular, gives context to the description “apolitical” in that - without the addition of the words “impartial” and “professional”. Now, that is a matter the Commonwealth Solicitor‑General addressed on.

But then, section 10(1)(e) expands on the reference, in my submission, in section 3A to serving the government, the Parliament and the Australian public and that it places that objective in the context of the APS being openly accountable for its actions within the framework of ministerial responsibility.  That is to say the object of being effective in serving the government, et cetera, in 3A involves also being accountable to the government, Parliament, the Australian public, in the sense that is understood by the concept of responsible government.

Section 13(11) then expressly connects the APS values with the required behaviour of an APS employee and specifically it requires an APS employee to at all times behave in a way that upholds the APS values. So it is not expressly limited to the value in section 10(1)(a). So the question, to make good my proposition that it relates – how does it relate to 10(1)(e) is to look at the fact that section 13(11) also speaks to the integrity and good reputation of the APS, that is the internal character and functioning of the organisation and the public perception of that organisation because these are characteristics of the proper functioning of responsible government and they give, in my submission, specific content to behaviour that is required to uphold the value set out in section 10(1)(e).

That point was made not in terms and in a more acute situation, but parallel circumstances in the Chief of the Defence Force v Gaynor in a passage that the Commonwealth Solicitor‑General has taken the Court to at joint book, 4 tab 22 at page 1523 of the book.  It is paragraph 106 and I will not read the entire paragraph out, just to note that given this was – this paragraph was set in the context of compatibility testing.  The Court said that:

The ends pursued by reg 85, as but one of a number of powers available to control the behaviour and regulate the membership of the ADF, including by termination, were in our opinion consistent with preserving the integrity of the system of representative and responsible government.

Now, I pointed out that is in the context of compatibility testing.  The statement for compatibility testing, as this Court said in paragraph 2 in McCloy, which I will not take the Court to, referred to representative government.  By the time it restated the compatibility test in Brown - at paragraph 104 it stated:

The commencing words of Questions 2 –

and this is – it gets to question 1:

is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. 

So, there was, in fact, a statement at least that brought in or at least acknowledged responsible government which is of course a pillar of representative government by the time the Court made the statement in Brown. 

It is in this faceted way that section 13(11) gives bite to the APS value that is set out in section 10(1)(e). South Australia submits that the purpose then of section 13(11) can be said – be given full effect as to regulate the conduct of APS employees to enhance the effective functioning of the APS as an organisation of integrity and good reputation in furtherance of the structure of responsible government established by the Constitution and given content by the Public Service Act. 

By linking the behaviour of public servants to an APS value and object of the Act that promotes responsible government, section 13(11) is indeed enhancing the system of representative and responsible government. So that connection between requirements of behaviour in the section, which relevantly impose a burden on political communication, and the APS value that promotes accountability within the framework of ministerial responsibility provides an answer to the challenge that the respondent makes to the Commonwealth at paragraph 54 of the respondent’s written submissions, where the respondent says:

The Commonwealth claims that public servants can be singled out for burdens on political communication “because the imposition of such burdens . . . promotes the functioning of the system of

government for which the Constitution provides”. But it must show that this objective is connected to and advanced by the particular provisions impugned here. Not every law restricting public servants’ political speech could bear on the Executive government‘s performance of its constitutional role –

That is the connection that we draw in order to answer that.  Is that a convenient time?

KIEFEL CJ:   Yes, it is.  Could the parties and the interveners assist with some idea of finishing time tomorrow, now?  If we could have some sense of – it probably depends mostly on the respondent, Mr Merkel. 

MR BLEBY:  I will only be 10 or 15 minutes, your Honour, at the most.

KIEFEL CJ:   Mr Merkel? 

MR MERKEL:   …..

KIEFEL CJ:   Could you be a little more specific?  It is a rather long time in a day. 

MR MERKEL:   I would estimate…..

KIEFEL CJ:   I thought that some of your argument, though, was restricted.

MR MERKEL:   …..overnight.

KIEFEL CJ:   Do you think you will require the full estimate that you originally gave?

MR MERKEL:   …..

KIEFEL CJ:   All right.  Yes, thank you.  The Court will adjourn until 9.45 am.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 21 MARCH 2019