Be careful what you Tweet about, anonymously or not
On 7 August 2019, the High Court of Australia (High Court) handed down its decision of Comcare v Banerji  HCA 23 (Decision), the well-publicised case which involved former Australian public sector employee, Michaela Banerji (Banerji), who was terminated from her employment with the Department of Immigration and Citizenship (Department).
Banerji was dismissed from her employment for posting in excess of 9,000 tweets on Twitter under a pseudonym, which were highly critical of the Department itself, Government and Opposition immigration policies, the Government generally and importantly, contrary to the Australian Public Service (APS) Code of Conduct.
The issue which has resulted in this matter being heard before the High Court was in fact a workers’ compensation claim made by Banerji for post-traumatic stress disorder, as a result of the Department’s investigation into her conduct. Banerji’s claim was rejected by Comcare because it found that the Department took reasonable administrative action in a reasonable manner, therefore precluding Banerji from an entitlement to workers’ compensation payments.
The matter was heard before the Administrative Appeals Tribunal (AAT), who held that the Department’s act of terminating Banerji’s employment unacceptably trespassed on the implied freedom of political communication (AAT Decision). The AAT therefore found that the act of termination was unlawful, and hence cannot be reasonable administrative action.
However, the High Court, on the other hand, found that the way in which the AAT decided the matter was “misconceived”, because it incorrectly assumed that the implied freedom of political communication was a personal right of free speech. In Australia, the implied freedom of political speech is a restriction on legislative power which arises as a necessary implication from the Constitution. Therefore, the question of whether the act, which in this case, is the Public Service Act 2009 (Cth) (PS Act), imposes an unjustified burden on the implied freedom of political communication is a question of the law’s effect on political communication as a whole, not on a single person.
The High Court allowed Comcare’s appeal of the AAT Decision and held that the relevant sections of the PS Act did not impose an unjustified burden on the implied freedom of political communication, and the termination of Banerji’s employment was not unlawful. The Decision was a result of a comprehensive application of the two-part test set out in the case of Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. The test questions whether the impugned law is for a legitimate purpose consistent with the system of representative and responsible government mandated by the Constitution and, if so, whether that law is reasonably appropriate and adapted to the achievement of that objective.
In summary, the High Court held that the relevant sections of the PS Act have a significant purpose consistent with the system of representative and responsible government mandated by the Constitution, in particular, to uphold the APS values and the integrity and good reputation of the APS.
The High Court rejected Banerji’s contention that the relevant sections of the PS Act did not apply to ‘anonymous’ communications, which she claims her tweets were. Importantly, Justice Gordon said that “attempts to carve out some subset of “anonymous” political intervention or communications create an illusory category.” This is because anonymity can, and often will be lost, like it has in this case. Of course, when it is lost, the damage done is that a member of the APS is seen to not be apolitical, contrary to the public’s very perception of the APS, which is as an apolitical, impartial and professional part of executive government.
Take Home Messages for Employers
This Decision is yet another example of how far an employer can encroach on an employee’s personal life and control the expression of an employee’s political beliefs. The High Court emphasised that matters of this kind are not to be determined based on a ‘one size fits all’ approach, and human resource professionals should certainly not assume that employees in all cases can be dismissed for expressing their political views on social media or otherwise using social media inappropriately.
However, employees must be made clear, especially those working in local or state government, that their actions outside of work and on social media, whether anonymous or not, may impact on their employment. If an employee criticises their employer on social media, termination may follow, depending on what has been posted.
An employer’s decision to terminate an employee for their outside of hours social media use must have regard to all the circumstances in the particular case, including any policies or procedures in place and whether the social media posts are inconsistent with the organisation’s values.