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Thread: Tomorrow, the @HighCourtofAus will deliver judgment in Comcare v Banerji (@LaLegale). It is one of the most important free speech (implied freedom of political communication) cases to be determined in recent years. Here's a short recap.
In 2012, the Department sought to terminate the employment of the tweeter - Ms Banerji - on the basis that her tweets breached the APS Code of Conduct, particularly the obligation to 'at all times' comply with the APS Values, which include a requirement of impartiality.
Banerji sought an injunction in the Federal Circuit Court on the basis of an expansive interpretation of the implied freedom. She lost. Neville J determined: 'The unbridled right championed by Ms Banerji ... does not exist.'
Banerji filed a workers' compensation claim, for an adjustment disorder she contended was suffered as a result of the disciplinary action and termination. Comcare denied the claim on the grounds the investigation and termination constituted reasonable administrative action.
In 2018, the Administrative Appeals Tribunal found in Banerji's favour. It held that terminating her employment for the tweets was contrary to the implied freedom of political communication and therefore could not constitute reasonable administrative action.
While the Tribunal noted that regulation of public servants' political comment where that comment was attributable to them as public servants may be legitimate, restrictions where comment is made anonymously 'bear a discomforting resemblance to George Orwell’s thoughtcrime’
Comcare appealed; the matter was removed to the High Court. The Cth Attorney-General, intervening, took the lead. NSW, SA & WA intervened, in support of the Cth position. The AHRC sought leave to intervene to make several principled points about the nature of the implied freedom.
I analysed the submissions for Sydney Law Review, available via @austlii classic.austlii.edu.au/au/journals/Sy….
The High Court's judgment on Wednesday is significant for two reasons. Firstly, it will guide the scope of permissible government regulation of the political engagement of public servants.
If the HCA holds for Comcare, it will empower federal, state and local govt to limit permissible political comment by public servant. Govt employees make up 16% of the Aus workforce - that's a significant proportion of society silenced from political discourse.
The chilling effect will be significant. The number of public servant spectators in the audience during the March hearing was evidence of that. The outcome will reverberate around government departments tomorrow.
If the HCA holds for Banerji, it will provide a potent check against continued government intervention into the political life of public servants.
There are no easy answers on this at a normative level. Public sector neutrality is important, for both principled and instrumental reasons - it is a bulwark against 'the insecurity and ineptitude of a reversion to political patronage'.
But there are public interest and rights-based arguments against unchecked government intervention. As the Canadian Supreme Court has said, public servants cannot be silent members of society. They are citizens too - and you can't contract out of constitutional protections.
Resolving that balance, which has vexed courts in the US, UK, Europe, Canada and elsewhere for many years, and now comes before the HCA for the first time, is not easy.
The second reason for the importance of Banerji is more methodological/relevant to the continued development of the implied freedom. Put simply, there is little guidance as to how to undertake this constitutional review exercise.
Do you A) review the authorising statue, which has broad scope unrelated to political comment; or B) review the individual decision to terminate Banerji? The former risks ignoring the burden on political communication; the latter risks blurring the right/freedom distinction.
There's also a difficult middle category of cases, where the constitutionality of the statute can only be assessed by reference to individual application. There is only patchy jurisprudential guidance on these challenging issues - the HCA's Banerji judgment could represent...
...a significant step forward in implied freedom jurisprudence. I will review the judgment with interest.
For the context, see this which was initially written for the @canberratimes @PSInformant but which I cannot find online there cla.asn.au/News/will-the-…, and my report from the hearing for @SatPaper thesaturdaypaper.com.au/news/media/201…
