A Case Note: Without a Human Rights Charter, Are Our Implied Freedoms Enough?

This blog post is a part of the #WeCanDoBetter Campaign. We’ve partnered up with MSA Environment and Social Justice Department to explore how we can advocate for a more fair and just society post-pandemic. This week, we’ve been exploring the possibility of a Charter of Human Rights in Australia.


Comcare v Banerji (2019) 372 ALR 42
The High Court found that the implied freedom of political communication did not protect a public servant from the termination of her employment as a result of her anonymous tweets criticising government immigration policy. This case emphasised the limits of the constitutional freedom, particularly in comparison to similar protections on speech in other countries which are explicitly enshrined in a Bill of Rights.

FACTS
The respondent, Banerji, was employed by the Commonwealth Department of Immigration and Citizenship. On an anonymous account which was not linked to her name or her employment, she posted more than 9,000 tweets criticising the Department and its employees as well as Government immigration policies and Members of Parliament. At least one of the tweets was posted during the respondent’s working hours. The respondent’s employment was terminated for breaching the Australian Public Service Code of Conduct, as set out in the Public Service Act 1999 (Cth).

THE HIGH COURT’S DECISION
The main issue in Comcare v Banerji (2019) 372 ALR 42 was whether the relevant provisions of the Public Service Act 1999 (Cth) placed an unjustified burden on the constitutionally implied freedom of
political communication. The High Court unanimously found that they did not, though Gagelar, Gordon, and Edelman JJ each delivered separate reasons from the plurality.


The Public Service Act 1999 (Cth) states that an ‘APS (Australian Public Service) employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS’. The APS values include the ‘apolitical…impartial and professional’ nature of the APS. The Court found that although the provisions of the Public Service Act 1999 (Cth) burdened the implied freedom of political communication, the law was for a legitimate purpose consistent with the constitutionally prescribed system of representative and responsible government, namely the maintenance of an apolitical and professional public service. The law was reasonably appropriate and adapted to that purpose.


Another argument raised by the respondent was that the decision to terminate her employment was vitiated by the decision-maker’s failure to take the implied freedom of political communication into account. The Court rejected this submission, finding that the implied freedom did not limit the decision-maker’s discretion in determining the penalty to be imposed on the respondent. Justice Edelman (at [208]) said that the implied freedom did not ‘operate directly upon an executive act to invalidate an executive decision that is authorised by legislation’, but merely upon the legislation itself.

The plurality stressed that the implied freedom of political communication is not a personal right held by Australians, in contrast to the freedom of expression in the Canadian Charter of Rights and Freedoms or First Amendment rights in the United States. The implied freedom is merely a limit on legislative power, and ‘extends only so far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution’ (at [20]).

Written by Laura Woodbridge.


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