Comcare v Banreji – lessons learnt

August’s High Court decision in Comcare v Banerji has been subject to some confusing reporting, which this aims to clarify. 

It concerned an APS6 in Immigration who sent 9000 tweets (described as “vitriolic” and “intemperate”) criticising government policies, departmental administration, politicians and colleagues, including her supervisor. Although she obscured her identity, colleagues identifed her and made complaints. 

Ms Banerji admitted sending the tweets and after a lengthy process, she was sacked for multiple Code of Conduct breaches. She claimed against Comcare for psychiatric injury, arguing her termination was not “reasonable administrative action”, because the relevant provisions of the Public Service Act (PSA) were inconsistent with the implied Constitutional freedom of political communication.

Some commentators have suggested the High Court found that sacking is the penalty for criticising government policy. Not so: it did not consider whether sacking was appropriate, because in earlier proceedings Banerji had effectively accepted that it was. 

Others infer the Court decided public servants may not criticise government policy. Again, not so. All judges found public servants may make political comment and participate in public life. However this is a question of degree and context, and depends on whether the activity jeopardises the APS’s reputation, or undermines its impartiality.

Others argue Banerji’s tweets should be protected by their anonymity. The court found no reason anonymous comments could not be a breach; also suggesting the tweets weren’t really anonymous – Banerji‘s identity was easily discovered, and Immigration’s social media policy warned staff should expect to be identified.

Last, some commentators suggested the Court wound back the implied Constitutional freedom of political communication.
The Court made no changes to this whatsoever. This right has never been a personal right of free speech, but operates to prevent Parliament enacting legislation that unreasonably limits political communication. 

All judges found the PSA does not infringe this principle, each for slightly different reasons, including: the APS is only part of the population, so overall the freedom is not impaired; the Constitutional commitment to an impartial APS justifies setting limits in the PSA; and the boundaries are not oppressive – most public servants can still comment on most topics, and when they do infringe, penalties are usually minor. 

In conclusion – Comcare v Banerji changes nothing.  Business as usual.