The High Court decision in Comcare v Banerji [2019] HCA 23, which relates to tweets by a Commonwealth public servant (tweeted under the handle @LaLegale) about government policies, has been handed down.

The court held that various sections of the Public Service Act 1999 (Cth) (Act), relating to the Australian Public Service (APS) Code of Conduct (Code) and APS Values, which relevantly restricted social media use by public servants, did not impose an unjustified burden on the implied freedom of political communication, meaning the termination of Ms Banerji's employment with the Commonwealth was not unlawful.

There has been some commentary that this case will have widespread repercussions for freedom of speech for all employees, including those in the private sector. With respect, I don't agree with that assessment.

A constitutional case relating to Commonwealth public servants

The consequences of the case are almost entirely confined to Commonwealth public servants.

There is an important policy debate to be had about the appropriateness of the restrictions in the Act on political expression by Commonwealth public servants. They might (understandably) be disappointed and concerned about the relevant restrictions being upheld. In this regard, the Banerji matter might not have been an ideal test case, as she frequently tweeted about issues relating to the portfolio in which she worked, which even some strong critics of the restrictions concede gives rise to a potential conflict that is proper for the Commonwealth to seek to address.

Without wishing to be glib or dismissive about these real and legitimate concerns, it is not axiomatic that the expression of political views by a Commonwealth public servant on social media will be a valid reason for termination or provide the basis for a fair dismissal. While the case affirms those parts of the Code and Values restricting social media use, the unfair dismissal jurisdiction of the Fair Work Commission will continue to provide protection for employees, with all relevant circumstances being taken into account, including whether a termination for an offending post or tweet is harsh given the objective gravity of the conduct and the other forms of disciplinary action available in section 15 of the Act.

Implications for private sector employees

The case, interesting as it is, has little relevance to employees who are not Commonwealth public servants. It is not a 'green light' to private sector employers to terminate employees who express political or other views on social media. Any private sector employer who reads it as giving carte blanche to restrict the political (or other) expression of their employees on social media is reading too much into the decision. The fundamental principles still apply. There are risks for employers who purport to regulate out of hours (or 'private') employee conduct (including social media) that has no or minimal nexus with the legitimate interests of the employer. A private sector employer who wants to terminate the employment of a staff member for posting political views on social media with which the employer happens to disagree will find very little in the Banerji case to support their (flawed) position. The body of Fair Work Commission cases dealing with social media use by employees (commonly based on the broader principles relating to out of hours conduct by employees in Rose v Telstra Corporation Limited (1998) AIRC 1592) remain a more useful guide.

Implications for the Folau case

Some people have surmised that the Banerji case, in adopting a limited reading of the implied freedom of political communication, presents a significant problem for Israel Folau in his case (which has now been progressed to the Federal Circuit Court). There is no discernible connection between the two. The Folau case is based on, inter alia, an alleged breach of section 772 of the Fair Work Act. Unlike the Banerji case, it does not rely upon an implied constitutional freedom. At best, and this is a stretch, the case gives a clue that the High Court might interpret section 772 of the Fair Work Act narrowly (if, of course, the Folau case ever gets that far).

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Michael Byrnes, Partner
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