'Of Lonely Ghosts': The Primacy Of Responsible Government In Comcare v Banerji

Abstract

The High Court ruled on the compatibility of legislation with the constitutionally implied freedom of political communication (implied freedom) for the third time this year in Comcare v Banerji (Banerji). The case is another example of the significant work that the implied freedom is expected to do in resolving fundamental questions as to the correct balance to be struck between sensitive policy objectives and democratic principles. Banerji concerned a Commonwealth public servant, Michaela Banerji (the respondent), who, in September 2013, had her seven-year employment with the (then) Commonwealth Department of Immigration and Citizenship (the Department) terminated. This followed an investigation commenced in May 2012 into Ms Banerji's use of a Twitter account to publish highly critical comments of the Department, government and opposition immigration policy, politicians and her colleagues. Ms Banerji used a pseudonym when tweeting, but did publish "other identifying information". Section 13 of the Public Service Act 1999 (Cth) (PSA) set out the terms of the Australian Public Service (APS) Code of Conduct with subs (11) stating that APS employees "must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS". Section 13(11) operated alongside s 10(1)(a) of the PSA, which, in turn, defined "APS Values" as including the specification that "the APS is apolitical, performing its functions in an impartial and professional manner". Further, s 15(1) of the PSA established that an APS employee found to have breached the Code of Conduct could be subject to a specified discretionary sanction ranging in severity from termination of employment to a reprimand.