In the highly-anticipated decision of Comcare v Banerji, the High Court has found it is not unconstitutional for the federal government to restrict the rights of public servants to express their political views in a public forum.
So what does this decision mean for employees, freedom of political communication and the right to free speech?
The facts of the matter
The respondent in Comcare v Banerji [2019] HCA 23, Ms Michaela Banerji, was employed by the Department of Immigration and Citizenship until September 2013. At this time, her employment was terminated for having breached the Australian Public Service’s social media policy and code of conduct.
Specifically, it was claimed that Ms Banerji had ‘tweeted’ several thousand posts under an anonymous handle. Those posts commented explicitly on the federal government; Australian immigration policy; ministers; opposition spokespeople and her specific department.
Following her dismissal, Ms Banerji pursued a number of legal proceedings, claiming that her termination had breached her implied right to freedom of political communication.
Ms Banerji was successful in her argument before the Administrative Appeals Tribunal, which held that the anonymity of her Twitter account meant that she could not be identified as a public servant and the policy of her employer had been applied too strictly.
However, this decision of the AAT was ultimately overturned on appeal to the High Court.
The findings of the high court
In determining in favour of Ms Banerji’s employer, the High Court explicitly found that, although the Australian Constitution provides a freedom of political communication, this ‘is not a personal right of free speech‘.
It was further concluded that, anonymous or not, the tweets threatened the ‘integrity and reputation’ of the Australian Public Service. Moreover, it was of relevance that Ms Banerji was a public servant, which would become topical if her anonymity was ever threatened.
The wider implications of the case
As stated in the Administrative Appeals Tribunal’s decision, placing such significant restrictions on – anonymous – public servants could be considered akin to dealing with ‘thoughtcrime’. This means that society is imposing rules and punishments on people who have ‘done nothing’ other than have differing opinions.
Ultimately, the decision means that employees, whether in the public or private spheres must carefully consider expressing opinions, be they political or otherwise, which differ from those of their employer. It is clearly unwise to post controversial personal opinions under a readily identifiable name, which could in turn identify and embarrass a worker’s employer and lead to a conclusion that the opinions have caused damage to an employer’s reputation for example. However, of some concern is the decision of the High Court in applying the Australian Public Service’s standard and code of conduct requirements to anonymous tweets.
This decision is particularly topical given the controversy over the recent legal proceedings involving Rugby Australia and Israel Folau, a devout Christian, ‘cut and pasted’ text on social media about homosexuality and hell. Given Folau’s high profile as a rugby player, his employer Rugby Australia, terminated his employment. Folau is pursuing legal proceedings, arguing that his religious freedom has been interfered with as a result of his termination.
Although the nature of the defence differs from that put forward by Ms Banerji, the ultimate concept is the same: private individuals are putting forward commentary on personal beliefs and opinions, but on a public forum, and are being penalised by losing their employment as a result. Rugby Australia maintains that Folau’s breaches of conduct occurred repeatedly, and that he had been warned on several prior occasions about posting such commentary on social media.
While it is not yet known what the outcome will be for Folau, it is clear that these cases have wide-ranging implications for organisations and employees.
WISE Workplace is highly experienced at conducting investigations and the surrounding complexities of contemporary legal issues. If your organisation holds concerns regarding inappropriate social media use, WISE can conduct investigations and analysis of electronic evidence to establish defensible findings.
