29 August 2013

Banerji, Twitter and Political Communication

In Banerji v Bowles [2013] FCCA 1052 the Federal Circuit Court of Australia has considered claims of the implied freedom of political communication in relation to tweeting by a Commonwealth employee regarding the policy of her Department.

Neville J indicates that
There are two inter-related issues to be determined in the current proceeding:
(a) Is there an unfettered implied right (or freedom) of political expression/communication, for which the Applicant contends, based on comments by Kirby J in Australian Broadcasting Corporation v Lenah Game Meats?
(b) Should an interlocutory injunction issue to prevent the Applicant’s [apprehended and/or imminent] dismissal by the Respondent?
The answer to both questions is “no.”
The Applicant contends that her right of political expression is a constitutionally protected right which operates, in any event and without restriction, to prevent her dismissal – actual or apprehended - by the Respondent.
For the reasons that follow, and subject to what is said below in relation to undertakings regarding the departmental review process and the implementation of any proposed outcome from it, (a) there is no such constitutional right for which the Applicant contends, and (b) an interlocutory injunction should not issue because the legal base for it has not been made out, and or, in the alternative, in the exercise of the Court’s discretion, it should not, in any event, be granted.
As noted below, the Department gave an undertaking when the matter first came before the Court in Sydney late last year, which has effectively preserved the position of the Applicant within the Department, pending the conclusion of the review process. That undertaking has continued, with slight variation. On the basis of it continuing until (a) the review process is completed, (b) any determination is made (but not yet implemented) by the Department, and (c) a further 14 days after the determination is made but before it is implemented to allow for any further Application, there is neither utility nor need for an interlocutory injunction to issue. ...
There have been multiple iterations of the Application that is currently before the Court, by which the Applicant [originally] sought urgent [interlocutory] injunctive relief against the Respondent.
The Applicant contends that she is at risk of adverse action, namely the imminent termination of her employment. She says that she has been advised of that determination; the Department of Immigration and Citizenship (“the Department”) says that the internal review process continues, that no determination of the Applicant’s employment fate has been made, and that she has been invited to comment on the recommendations of the review. On the information before the Court, it would appear that the Applicant does not distinguish, or has not distinguished, between a recommendation by a reviewer and a decision by her employer, the Department.
Subject to what is said later in these reasons, the Department resists the Application for interlocutory relief. The Department also contended that this Court does not have the jurisdiction to deal with the Application. In part (summarily stated) this was because (a) there was a constitutional matter in relation to which the Court has no relevant jurisdiction, conferred, associated or accrued, and or (b) the Applicant has not specified or sought any final relief.
As already noted, while initially seeking injunctive relief, the Applicant now seeks declaratory orders which are said to relate to, or arise out of, the alleged infringement, by the Respondent, of her ‘implied freedom of political communication’ under the Constitution. The Applicant contends that her implied freedom arises out of, in particular, comments made by Kirby J in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd.
As already indicated, as the following reasons confirm, the Applicant has not established that the declarations sought should be made, or that an injunction should issue. While the Applicant’s fears of dismissal are doubtless real, the internal processes have not yet been concluded. Her immediate ‘fear’, as she has articulated it, does not in all the circumstances, in my view, establish a sufficient basis – in fact or in law – for any legal redress at this time. Moreover, I accept the submission by the Respondent that, in any event, damages will (or will likely) be an appropriate remedy if the Applicant ultimately makes out her case. Similarly, reinstatement may be an appropriate alternative remedy. Accordingly, her interim or interlocutory Application must be dismissed. Given that the Department has not sought an order for costs but simply that the Application be dismissed, in the circumstances, I make no order as to costs.
The Court notes that
Ms Banerji originally contended (and continues to maintain) that the Respondent intends to terminate her employment, among other things, because of her use of social media, and in particular her “Twitter” account. On that account, using the ‘Twitter handle’ of “@LALegale”, Ms Banerji has made, or shared, regular comment (sometimes mocking, sometimes critical) on, for example, (a) the practices and policies of the company that provides security services at Commonwealth immigration detention centres, (b) the immigration policies of the Australian Government, (c) information and comment by the Opposition spokesman on immigration (Mr Morrison), (d) the Minister for Foreign Affairs (Senator Carr), (e) the [then] Prime Minister, (f) the Leader of the Opposition, and (g) employees of the Department.
Ms Banerji appears to have claimed that she has been discriminated against in relation to a “whistle-blower complaint” against a manager who she said has been engaged in “covert surveillance of an employee’s social media account without her knowledge, with intent using monitoring software in prima facie breach of telecommunications legislation...”

She claimed that the Department, in breach of the Public Service Act, failed to protect  her from retaliation by the manager in the form of an allegation that Banerji breached the APS Code of Conduct through  use of Twitter.

In relation to the implied right of expression of political opinion, Banerji contended that "closer scrutiny of the substance of the tweets shows that none are offensive or damaging to individual persons, but instead, they are expressions of political opinion, to which all Australian citizens have a constitutionally implied right". She also contended that termination of her employment would be contrary to [unidentified “discrimination legislation that states that an employee must not be terminated for her political opinion”.

Neville J states that
Ms Banerji maintained (par. 51) that on close scrutiny of the substance of the tweets, “it is evident that they are a simple expression of political opinion, made in her own time away from work”. In such circumstances termination of her employment “would be unconscionable.” To be unemployed would lead, she said, to “convulsive shock.”
In her submissions filed 29th January 2013, the Applicant focussed primarily upon what she described as the contravention by the Department of “a constitutionally guaranteed freedom of political communication”. She said: “... were the Respondent to terminate the Applicant for her use of the social media Application ‘Twitter’ on the grounds that she expressed her political opinions, the Respondent’s actions would be unlawful in that they would purport to limit a constitutional [sic] implied right to political expression”. 
Neville J highlights two submissions, commenting
Ms Banerji said:
The Applicant is proud to be a public servant. She is of the view that in such a small way [sic] she is helping to run our country. She considers herself to be an employee of the people – the government and its executive arm the Respondent, being the representative government of the people. The Applicant does not want to see the Respondent acting unlawfully, in deference to the people of Australia, her employer. The Applicant’s allegiance is to the Australian people, for whom she is a servant – the true meaning of the term ‘public servant’.
Respectfully, whatever her philosophical views about representative government, or her employment, and accepting that the Court does not [yet] have a copy of her contract of employment, the legal reality is that she is an employee of the Department of Immigration and Citizenship (as it then was, and from time to time is – subject to the usual political vagaries regarding departmental name changes). I do not understand this legal status ever to have been disputed.
Secondly, at paragraph 2.18 (p.18) of her January 2013 submissions, which is a reply to paragraph 55 of the Respondent’s January submissions, Ms Banerji stated:
The Applicant replies that, under all of the circumstances, she deserves to remain in employment, that her employment should never have been threatened, that no sanction should have ever been proposed – that no sanction should be imposed, let alone the sanction of termination of employment. The practical result of affirming the breach and imposing the sanction is to contravene the implied freedom of political communication. In the Applicant’s view, this would be unlawful, and the executive power invalid. The Applicant has done nothing wrong. Expressing her political opinion, whether harsh or not, whether critical or not, whether done in her own name or not, whether done as an APS employee or not, whether done as an employee of the Department of Immigration or not, whether she indicates that she will continue or not, is not wrong – it is a right which is constitutionally guaranteed under our country’s laws, and any attempt by the Respondent to act in contravention of that right, is invalid and unlawful.
The Court went on to discuss [at 98-106] the freedom of political communication, commenting that
In essence, the Applicant contends that, whatever her comments on policy or persons, when and however made, including while employed by the Department, and notwithstanding her contract of employment and the APS Code of Conduct, and whatever the Department’s guidelines regarding the use of social media, her remarks constitute political comment. She contends further that her comments are constitutionally protected by the acknowledged “[f]reedom of communication on matters of government and politics [which] is an indispensable incident of that system of representative government which the Constitution creates.”
Ms Banerji maintains that her “right” to make the comments, which she acknowledges she has made, was recognised by Kirby J in ABC v Lenah Game Meats, to which I have earlier referred.
Respectfully, the principle for which the Applicant contends is not supported by relevant authority, including the judgment of Kirby J in Lenah Game Meats.
The unbridled right championed by Ms Banerji, which she says Kirby J articulated, does not exist. His Honour qualified his earlier comments (on which the Applicant relies) and went on the say in Lenah Game Meats, at [198] and [199] (internal citations omitted; emphasis added):
In these circumstances, and in respect of the activities of the appellant in this case, I would be prepared to accept, for the purposes of the present appeal, that broadcasting of ideas about government or politics relevant to the activities of the Federal Parliament or of a State parliament would fall within the principle expressed in Lange.
However, this principle does not uphold an inflexible rule. Australian law does not embrace absolutes in this matter. Many regulatory laws, federal and State, continue to operate in ways that are compatible with the representative democracy established by the Constitution. Restrictions, imposed by law, for limited purposes (even where they may incidentally diminish completely uninhibited discussion of issues of government or politics) may yet be compatible with the Constitution. It is only if the law in question is inconsistent with the intended operation of the system of government created by the Constitution that the implied constitutional prohibition has effect.
Further, the on-going jurisprudence of the High Court in relation to the implied right of political expression has confirmed the limitations to which Kirby J referred, such that, as with ‘rights’ generally, they are not unbridled or unfettered. Indeed, it may be that the Applicant has not, or does not, distinguish between a licence and a right. Further, even if there be a constitutional right of the kind for which the Applicant contends, it does not provide a licence [allegedly] to breach a contract of employment. In any event, among other things, in Attorney-General for South Australia v Corporation of the City of Adelaide, for example, the joint judgment of Crennan and Kiefel JJ confirmed, at [166] (internal citations omitted), that the right asserted here “is not a personal right. It operates as a restriction on legislative power and does so to support the constitutional imperative of the maintenance of representative government.” 
Likewise, in the same case, at [151] and [152], Heydon J confirmed the obvious point that the Australian Constitution does not contain provisions similar to the First and Fourteenth Amendments of the United States’ Constitution, or Article 5 of the German Constitution, both of which provide expressly for a right of freedom of expression.
As already observed, the unfettered right asserted by the Applicant does not exist. In the circumstances outlined in the current matter, and certainly only in the context of an interlocutory Application, I do not see that Ms Banerji’s political comments, ‘tweeted’ while she remains (a) employed by the Department, (b) under a contract of employment, (c) formally constrained by the APS Code of Conduct, and (d) subject to departmental social media guidelines, are constitutionally protected. Further, it makes no difference, and actually strengthens the case against granting the relief she seeks, that her “tweets” occurred (in part or in full) while she was also professionally retained or engaged in employment outside her duties with the Department, and in relation to which she has/had no formal permission from the Department to be so employed.
In any event, the constitutional claim or protection sought by Ms Banerji has not been made out.
By way of observation only, in the event the matter proceeds to a final hearing or some other Application is ultimately filed and constitutional issues remain, subject to submissions from the parties, in my view, such matters should be heard and determined by a superior court, which obviously would be the Federal Court of Australia.
On to the appeal!