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Published online by Cambridge University Press: 01 January 2025
The High Court of Australia recently overturned a tribunal decision in favour of a public servant who was dismissed after sending tweets critical of various politicians and government policies. All members of the Court found the relevant provisions were valid and did not infringe the implied freedom of political communication. This article first discusses development of freedom of speech at common law, through development in ideas about governance from a Hobbesian tradition to a Lockean model of representative government. Notions of representative government underpinned earlier High Court decisions on freedom of political communication, reflecting values such as the sovereignty of the people, accountability and informed decisions at election time. The article then considers restrictions on the ability of public servants to contribute to public debate in that light. Scholars and courts elsewhere have recognised the important contribution public servants can make to representative democracy. The recent decision pays insufficient interest to such contributions and is too willing to accept government arguments as to the need to suppress opinion by public servants in the name of an apolitical and independent public service, without considering counter arguments in terms of democracy, and without sufficient evidence of actual or likely interference with government functions. The proportionality analysis undertaken by the court was inadequate in its failure to do so. Whilst the freedom of communication of public servants is not absolute, restrictions must be narrowly confined and fully justified. Neither test was satisfied in this case.
1. ‘Those Who Control Flow of Information Not Above Law’, The Australian, 22 October 2019, 13 (editorial) (Sydney, Australia).
2. Comcare v Banerji [2019] HCA 23 (‘Banerji’); Kieran Pender, ‘A Powerful Chill: Comcare v Banerji and the Political Expression of Public Servants’ on AUSPUBLAW (28 August 2019), https://auspublaw.org/2019/08/“a-powerful-chill”?-comcare-v-banerji-[2019]-hca-23/
3. William Mayton, ‘Seditious Libel and the Lost Guarantee of a Freedom of Expression’ (1984) 84 Columbia Law Review 91.
4. Sarah Maddison, ‘Redefining Democracy’ in Clive Hamilton and Sarah Maddison (eds), Silencing Dissent: How the Australian Government Is Controlling Public Opinion and Stifling Debate (Allen and Unwin, 2007) 24 (‘Silencing Dissent’).
5. Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 (‘Australian Capital Television’); Nationwide News v Wills (1992) 177 CLR 1 (‘Nationwide News’). Various law reforms through the 20th century would give Indigenous Australians voting rights that the Australian Constitution did not originally confer upon them.
6. Attorney-General (Cth); ex rel McKinlay (1975) 135 CLR 1, 23 (Barwick CJ). Section 24 states the House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and be in proportion to population. Section 7 states the Senate shall similarly be directly chosen by the people of the Commonwealth.
7. ‘When Politicians Decide What’s News, No One Is Safe’, The Australian, 22 October 2019, 12 (Sydney, Australia), likely a reference to an article in the New York Times by Damien Cave, ‘Australia May Well Be the World’s Most Secretive Democracy’, 5 June 2019.
8. Danielle Ireland-Piper and Jonathan Crowe, ‘Whistleblowing, National Security and the Constitutional Freedom of Political Communication’ (2018) 46 Federal Law Review 341, 345–54.
9. Ibid 362.
10. Smethurst v Commissioner of Police [2020] HCA 14.
11. Joseph Stiglitz, On Liberty, the Right to Know and Public Discourse: The Role of Transparency in Public Life (Oxford Amnesty Lecture, 1999) 1: ‘secrecy is corrosive: it is antithetical to democratic values, and it undermines democratic processes. It is based on a mistrust between those governing and those governed; and at the same time, it exacerbates that mistrust’.
12. Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, 547 where Lord Keith for the House of Lords noted it was ‘of the highest public importance that a democratically elected governmental body…should be open to uninhibited public criticism’; Hector v Attorney-General of Antigua and Barbados [1990] 2 AC 312, 318: ‘in a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind’ (Lord Bridge).
13. John Stuart Mill, Utilitarianism, On Liberty, Considerations on Representative Government (Everyman, 1993) 268–9.
14. Sarah Cameron and Ian McAllister, Trends in Australian Political Opinion: Results from the Australian Election Study (Australian National University, 2016).
15. National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) ss 29 and 38I.
16. Ibid ss 40, 43, 46; Australian Border Force Act 2015 (Cth) s 42.
17. James Fitzjames Stephen, A History of the Criminal Law of England (Cambridge University Press, 1904) 299–300: ‘two different views may be taken of the relation between rulers and their subjects. If the ruler is regarded as the superior of the subject, as being by the nature of his position presumably wise and good, the rightful ruler and guide of the whole population, it must necessarily follow that it is wrong to censure him openly…if on the other hand the ruler is regarded as the agent and servant, and the subject of the wise and good master who is obliged to delegate his power to the so-called ruler because being a multitude he cannot use it for himself…this sentiment must be reversed. Every member of the public who censures the ruler…exercises in his own person the right which belongs to the whole of which he forms a part’; Leonard Levy, A Legacy of Suppression (Harvard University Press, 1960) 7, tracks the history of English law regarding freedom of speech, noting that prosecutions for offences such as sedition were strong during the tumultuous 17th and 18th centuries where fears of rebellion or revolution were high, but as society grew more stable in the 19th century, it was realised that political speech should be encouraged, rather than punished.
18. Wason v Walter (1868) LR 4 QB 73, 93 (Cockburn CJ). John Stuart Mill also reflected on this evolution: ‘a time, however, came in the progress of human affairs, when men ceased to think it a necessity of nature that their governors should be an independent power, opposed in interest to themselves. It appeared to them much better that the various magistrates of the state should be their tenants or delegates, revocable at their pleasure. In that way alone, it seemed, could they have complete security that the powers of government would never be abused to their disadvantage’: Mill (n 13) 71.
19. See above n 5.
20. Ibid.
21. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 564 (all members of the Court) (‘Lange’).
22. X7 v Australian Crime Commission (2013) 248 CLR 92, 109–10 (French CJ and Crennan J), 131–2 (Hayne and Bell JJ), 153 (Kiefel J).
23. Dan Meagher, ‘The Protection of Political Communication under the Australian Constitution’ (2005) 28 University of New South Wales Law Journal 30, 40 (‘Protection’): ‘the rationale of the implied freedom is a minimalist model of judicially protected popular sovereignty’; Dan Meagher, ‘What Is Political Communication? The Rationale and Scope of the Implied Freedom of Political Communication’ (2004) 28 Melbourne University Law Review 438, 462 (‘Political Communication’): ‘the ultimate goal of the implied freedom is to secure and provide for the meaningful exercise of the sovereignty of the people through the effective operation of our system of constitutional government, which is promoted by a broad-ranging and informed political discourse’.
24. Australian Capital Television (n5) 137 (Mason CJ).
25. In Nationwide News (n 5) 70, Deane and Gaudron JJ refer to the doctrine of representative government as a system of government by representatives directly or indirectly elected or appointed by, and ultimately responsible to, the Australian people. They conclude that this doctrine had a rational basis in the notion that all powers of government ultimately belonged to, and were derived from, the governed; Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, 149 (Brennan J), 163 (Deane J) (‘Theophanous’). Deane J refers to the doctrine of representative government, ‘with its underlying thesis of the sovereignty of the governed’ (172–3).
26. Alexander Meiklejohn, ‘The First Amendment Is an Absolute’ [1961] Supreme Court Law Review 245, 263 (‘Meiklejohn’).
27. Australian Capiteal Television (n5) 138: ‘in the exercise of those powers, the representatives of necessity are accountable to the people for what they do’ (Mason CJ); McHugh J also referred to freedom of political communication as leading to greater accountability (231).
28. Ibid 159 (Brennan J).
29. Ibid 231.
30. Silencing Dissent (n 4); Cass Sunstein, Why Societies Need Dissent (Harvard University Press, 2003). For a rationale for free speech based on fears about authoritarianism, see Frederick Schauer, Free Speech: A Philosophical Inquiry (Cambridge University Press, 1981).
31. Lange (n 21) 560 (all members of the Court).
32. Australian Capital Television (n5) 139 (Mason CJ), 212 (Gaudron J), 231 (McHugh J).
33. Ibid 138 (Mason CJ); Nationwide News (n 5) 74 (Deane and Gaudron JJ).
34. Meiklejohn (n 26) 263.
35. Ireland-Piper and Crowe (n 8) 360: ‘the constitutional principles of representative and responsible government favour a strong presumption in favour of allowing well-founded and relevant public debate and criticism concerning the performance of public officials’.
36. Michael Chesterman, Freedom of Speech: A Delicate Plant (Ashgate, 2000) 19; Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ (1999) 23 Melbourne University Law Review 668, 696 (‘Text and Structure’).
37. Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People (Harper, 1960) 27: ‘when (individuals) govern themselves it is they — and no-one else — who must pass judgment upon unwisdom and unfairness and danger. And that means that unwise ideas must have a hearing as well as wise ones, unfair as well as fair, dangerous as well as safe, un-American as well as American…the principle of the freedom of speech springs from the necessities of the program of self-government. It is not a law of nature or of reason in the abstract. It is a deduction from the basic American agreement that public issues shall be decided by universal suffrage’. Dan Meagher does not believe that any of the orthodox justifications for freedom of speech fit the implied freedom well: Political Communication (n 23) 442.
38. Theophanous (n 25) 124 where Mason CJ, Toohey and Gaudron JJ referred to all speech relevant to a whole range of issues which an intelligent citizen should think about; Hogan v Hinch (2011) 243 CLR 506, 544 (‘Hogan’) where French CJ stated it might include social and economic features of Australian society because they were potentially within the purview of government. Dan Meagher described the concept of ‘political communication’ as amorphous, as much a question of politics and sociology as one of law, and not susceptible to traditional legal reasoning: Political Communication (n 23) 466.
39. Levy v Victoria (1997) 189 CLR 579 (‘Levy’).
40. Australian Capital Television (n 5) 143 (Mason CJ); 234–5 (McHugh J); Hogan (n 38) 555 (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
41. Lange (n 21) (as slightly modified in Coleman v Power (2004) 220 CLR 1) (‘Coleman’), considering whether (a) the impugned measure burdened freedom of communication about political matters in terms, operation or effect, and (b) whether the law is reasonably appropriate and adapted to achieving a particular end in a manner which is compatible with the constitutionally entrenched system of representative and responsible government.
42. Kiefel CJ, Bell, Keane, Gageler and Edelman JJ. That approach had earlier been suggested in academic writing: Jeremy Kirk, ‘Constitutional Guarantees, Characterisation and the Concept of Proportionality’ (1997) 21 Melbourne University Law Review 1, 5–9; Protection (n 23) 44–52. It loosely reflects application of proportionality analysis in Europe and Canada: Text and Structure (n 36) 681.
43. City of San Diego v Roe 543 US 77, 82 (2004) (per incuriam): ‘public employees are often the members of the community who are likely to have informed opinions as to the operations of their public employers, operations which are of substantial concern to the public. Were they not able to speak on such matters, the community would be deprived of informed opinions on important public issues. The interest at stake is as much the public’s interest in receiving informed opinion as it is the employee’s own right to disseminate it’; R S Parker, ‘Official Neutrality and the Right of Public Comment: The Implications of the Bazeley Case’ (1961) 20(4) Australian Journal of Public Administration 291, 296: ‘the status of the public as a potential contributor to the enlightenment of public opinion deserves the most serious examination — especially as (they) represent our nearest approach…to an impartial and fully informed contributor to this process’.
44. Clive Hamilton and Sarah Maddison (eds), Silencing Dissent: How the Australian Government Is Controlling Public Opinion and Stifling Debate (2007) 3; Mill also wrote of the ‘increasing inclination to spread unduly the powers of society over the individual…this encroachment is not one of the evils which tend spontaneously to disappear, but…to grow more and more formidable’: (n 13) 82.
45. Ireland-Piper and Crowe (n 8) 342.
46. Section 26(3) states that relevant factors in determining the public interest here include whether disclosure would promote the integrity and accountability of the federal public service, whether the disclosure would expose failure to address serious wrongdoing in the federal public service, the extent to which the discloser would thereby be protected, the principle that disclosures should be properly investigated and dealt with, the nature and seriousness of the disclosable conduct, risk that disclosure might pose to national security or relations at international level or within our federation, whether the material is confidential in nature and any risk that disclosure could prejudice the proper administration of justice.
47. Ireland-Piper and Crowe (n 8) 362: ‘there are many kinds of matters that concern public policy or the performance of public officials that are not covered by this definition’ (of disclosable conduct under the Public Interest Disclosure Act 2013 (Cth)).
48. This point was made in the judgment of Souter J (dissenting) in Garcetti v Ceballos (2006) 547 US 410, 439–40 (with whom Stevens and Ginsburg JJ joined).
49. R S Parker, ‘Official Neutrality and the Right of Public Comment: The Vow of Silence’ (1964) 23(3) Australian Journal of Public Administration 193, 196.
50. R Plehwe, ‘Political Rights of Victorian Public Employees’ (1983) 42(3) Australian Journal of Public Administration 362; Commonwealth Public Service Regulations 1902 (Cth) reg 41; Kieran Pender, ‘Comcare v Banerji: Public Servants and Political Communication’ (2019) 41(1) Sydney Law Review 131, 131.
51. Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39, 52: ‘it is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticise government action’ (Mason J); Parker (n 43) 296: ‘secrecy in some aspects of external relations and defence is an unhappy necessity…the problem is…that the line between secrecy for purposes like this and reticence for the protection of the reputation and power of the government in office is sometimes hard to draw, and unfortunately Australian governments in particular show a tendency to exploit the ambiguities of the situation to the full’.
52. C K Allen, Laws and Orders (Stevens and Sons, 1965) 281–2.
53. De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 75–6 (Lord Clyde, for the Council).
54. Geoffrey Barker, ‘The Public Service’ in Clive Hamilton and Sarah Maddison (eds), Silencing Dissent: How the Australian Government Is Controlling Public Opinion and Stifling Debate (2007) 142–3.
55. Parker (n 43) 296.
56. Banerji (n 2) [182] (Edelman J).
57. ‘Secrecy laws that impose obligations of confidentiality on individuals handling government information — and the prosecution of public servants for the unauthorised disclosure of such information — can sit uneasily with the Australian Government’s commitment to open and accountable government’: Australian Law Reform Commission, Secrecy Laws and Open Government in Australia, Report No 112 (December 2009) 21.
58. For example, in the context of s 90 of the Constitution (Parton v Milk Board (Vic) (1949) 80 CLR 229, 260 (Dixon J), Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599, 631 (Mason CJ), and s 92 (Betfair Pty Ltd v State of Western Australia) (2008) 234 CLR 418, 452 (Gleeson CJ, Gummow, Kirby, Hayne, Crennan and Kiefel JJ).
59. Paul Finn, ‘The Abuse of Public Power in Australia: Making Our Governors Our Servants’ (1994) 5 Public Law Review 43; Bennett v President, Human Rights and Equal Opportunity Commission [2003] FCA 1433.
60. Bennett [2003] FCA 1433.
61. Ibid [79].
62. Ibid [82].
63. Stiglitz (n 11).
64. Cass Sunstein, ‘Government Control of Information’ (1986) 74 California Law Review 889, 894.
65. Ibid 892.
66. Ibid 903.
67. Ibid 916: ‘in some contexts the only interest supporting a secrecy agreement will be the desire to immunize government from criticism or exposure’.
68. Sunstein (n 64) 919–20.
69. Protection (n 23) 48: ‘in the context of the implied freedom (in Australia), the Canadian approach to necessity has much to commend it’; Dan Meagher, ‘The Brennan Conception of the Implied Freedom: Theory, Proportionality and Deference’ (2011) 30 University of Queensland Law Journal 119, 121.
70. Australian Capital Television (n 5) 140–1 (Mason CJ).
71. Nationwide News (n 5) 49–50 (Brennan J), 74–5 (Deane and Gaudron JJ).
72. In the Matter of Three Bills Passed by the Legislative Assembly of Alberta [1938] SCR 100, three members of the Supreme Court found that implicit in Canada’s democratic structure was a prohibition on restrictions which would prevent the public from being able to access information about their government, or discuss political issues. The suggestion was that legislative attempts to curb such freedom of discussion among Canadian citizens would be constitutionally invalid: Duff CJ (with whom Davis J agreed) (133–4); Cannon J (146); similarly Switzman v Elbling and Attorney-General Quebec [1957] SCR 285, 306 (Rand J, with whom Kellett J agreed), to like effect Abbott J (326, 328).
73. Dan Meagher suggested use of the Canadian case law on proportionality to adjust the approach taken to the implied freedom in Australia, a three-tiered model which the High Court adopted subsequent to the publication of his article: Protection (n 23) 50.
74. Gerald Rosenberg and John Williams, ‘Do Not Go Gently into that Good Right: The First Amendment in the High Court of Australia’ [1997] Supreme Court Review 439.
75. Anthony Gray, ‘The First Amendment to the United States Constitution and the Australian Implied Freedom of Political Communication’ (2019) 48(3) Common Law World Review 142.
76. [1985] 2 SCR 455 (Fraser); see for discussion Lorne Sossin, ‘Speaking Truth to Power? The Search for Bureaucratic Independence in Canada’ (2005) 55 University of Toronto Law Journal 1; Amanda Clarke and Benjamin Piper, ‘A Legal Framework to Govern Online Political Expression by Public Servants’ (2018) 21 Canadian Labour and Employment Law Journal 1.
77. Fraser (n 76) 466 (Dickson CJ, for the Court).
78. Ibid 470.
79. Ibid 467.
80. Ibid 470.
81. [1991] 2 SCR 69.
82. Ibid 97 (Sopinka J, for Cory and McLachlin JJ; with whom Wilson and L’Heureux-Dube JJ relevantly agreed).
83. Ibid 99.
84. Haydon v Canada [2002] FC 82; [2005] FCA 249.
85. The Sunday Times v United Kingdom (No 2) [1991] ECHR 50; Observer and Guardian v United Kingdom [1991] ECHR 49 (Observer and Guardian).
86. Observer and Guardian (n85) [69].
87. Ibid [59].
88. McCloy v New South Wales (2015) 257 CLR 178, 195–6 (French CJ, Kiefel, Bell and Keane JJ).
89. [2008] ECHR 144.
90. [2011] ECHR 1175.
91. Guja v Moldova (n 89)…[74] (Grand Chamber).
92. Ibid [74].
93. Ibid [71].
94. Ibid [77].
95. Ibid [76].
96. Ibid [73].
97. Ibid [78].
98. Catalan v Romania [2018] ECHR 6.
99. Ahmed and Others v United Kingdom [1998] ECHR 78.
100. Australian Capital Television (n 5) 140–5 (Mason CJ), 211–14 (Gaudron J), 231–5 (McHugh J); Nationwide News (n 5) 79 (Deane and Toohey JJ); Adrienne Stone, ‘Freedom of Communication, the Constitution and the Common Law’ (1998) 26 Federal Law Review 219, 220.
101. Pickering v Board of Education 391 US 563, 572 (1968) (Marshall J, for the Court).
102. Rankin v McPherson 483 US 378, 386 (1987) (Marshall J, for Brennan Blackmun and Stevens JJ; Powell J concurring).
103. Connick v Myers 461 US 138, 152 (1983).
104. Hatch Act 1939 (US).
105. United Public Workers v Mitchell 330 US 75 (1947).
106. [2016] FWC 1460 Starr.
107. Ibid [71] (Vice-President Hatcher).
108. Ibid [72].
109. Ibid [73].
110. Ibid [73].
111. Ibid [8].
112. Ibid [86]–[87].
113. There is no evidence that the decision was appealed. A search of Fair Work Commission Full Bench decisions referencing the implied freedom of political communication produced only one result, the decision in Anderson v Thiess Pty Ltd [2015] FWCFB 478. That case is of marginal relevance here because it occurred in the private sector context.
114. [2013] FCCA 1052.
115. Banerji and Comcare (Compensation) [2018] AATA 892 (Banerji, AATA).
116. Banerji, AATA (n115) [116].
117. It quoted with approval a statement by Erskine to the effect that the Canadian jurisprudence was germane to the situation in Australia, and that the principles worked out in the Canadian case law would be applicable in Australia: Christopher Erskine, ‘The Bennett Decision Explained: The Sky Is Not Falling!’ (Paper presented at an Australian Institute of Administrative Law Seminar, 27 April 2005), quoted with approval in Banerji and Comcare (Compensation) [2018] AATA 892 [79] (Deputy President Humphries and Member Dr Hughson).
118. Banerji (n2) [20]; cf suggestions that an as-applied approach should be taken: Pender (n 50) 144–5; Kieran Pender, ‘“Silent Members of Society”? Public Servants and the Freedom of Political Communication in Australia’ (2018) 29 Public Law Review 327, 346–9.
119. Banerji (n2) [24].
120. Ibid [24].
121. Ibid [29].
122. Ibid [31].
123. Ibid [35].
124. Ibid [36]–[37].
125. Ibid [38]. A different conclusion was reached by Kieran Pender in his assessment of adequacy of balance in this particular case ‘Pender (n 50)’145–6: ‘a court should not uphold broad intrusions into the private lives of public servants, a consequence of which is the distortion of political discourse among a significant portion of the Australian polity…Banerji was a mid-level public servant, terminated because of the content and tone of her political communications, which were made anonymously, in her own time, and using her own electronic devices…prohibiting anonymous political expression by non-senior public servants on a topic of immense national interest…. Is not adequate in the balance it strikes between the competing policy objectives. Instead, as the Tribunal commented, “restrictions in such circumstances bear a discomforting resemblance to George Orwell’s thought crime”’.
126. Ibid [42].
127. Ibid [90].
128. Ibid [97].
129. Ibid [99].
130. Ibid [104].
131. Ibid [105].
132. Ibid [150].
133. Ibid [161].
134. Ibid [164].
135. Ibid [166].
136. Ibid [195]. Edelman J noted the restrictions were shallower than those that had been imposed in the past on Australian public servants: [197].
137. These were: (a) the seniority of the public servant within the APS; (b) whether the comment concerns matters for which the person has direct duties or responsibilities, and the extent to which the comment might impact those duties or responsibilities; (c) where the comment lies on the spectrum ranging from vitriolic criticism to objective and informative policy discussion; (d) whether the public servant intended, or could reasonably foresee, that the communication would be disseminated broadly; (e) whether they intended, or could reasonably foresee, that the communication would be associated with the APS; and (f) if so, what the public servant expected, or could reasonably have expected, an ordinary member of the public to conclude about the effect of the comment upon the public servant’s duties or responsibilities.
138. Banerji (n119) [205].
139. Ibid [195].
140. 543 US 77, 80 (2004) (all members of the Court).
141. Similarly, Edelman J noted that ‘a public servant is intended to be able to take part in their political community’: Banerji (n2) [182].
142. Banerji; AATA (n 115) [114]-[119]. Of course, it is idle to speculate how, if at all, the structure of the judgments would have differed if the case had been brought in the court’s original jurisdiction.
143. Banerji (n2) [35], consistent with previous iterations of the necessity test: McCloy v New South Wales (2015) 257 CLR 178, 195 (French CJ, Kiefel, Bell and Keane JJ).
144. Banerji (n 2) Edelman J stated that ‘what the public servant expected, or could reasonably have expected, an ordinary member of the public to conclude about the effect of the comment upon the public servant’s duties or responsibilities’ was one of six relevant factors: [183].
145. Banerji (n 2) For example, the joint reasons state that if a Permanent Secretary tweeted criticism of the Minister or government, ‘on any view’ proscription of such conduct would be justified: [26] (Kiefel CJ, Bell, Keane and Nettle); [93] and [98] (Gageler J); [183] (Edelman J).
146. Starr (n 106).
147. Ibid [8].
148. Ibid [74].
149. Banerji (n 2 ) [38].
150. Pender (n 2).
151. Banerji (n 2) [97].
152. Ibid [97]; Hogan (n 38) 555 (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). This is because, as John Ely points out in Democracy and Distrust: A Theory of Judicial Review (Harvard University Press,1980), ‘where the evil the state is seeking to avert is one that is thought to arise from the particular dangers of the message being conveyed…the hazards of political distortion and judicial acquiescence are at their peak’ (111).
153. Pender estimates there are approximately two million public servants in Australia potentially affected by the decision: Kieran Pender, ‘Comcare v Banerji Ruling Blurs the Line of Acceptable Political Expression’, Canberra Times, 7 August 2019 (Canberra, Australia).
154. [2016] FWC 1460 [73].
155. Banerji AATA (n 115) [112] (Deputy President Humphries and Member Dr Hughson).
156. Starr (n 106) [86]–[87] (Vice-President Hatcher).
157. For example, Re State Public Services Federation (1993) 178 CLR 249, 279 (Dawson J).
158. (1995) 184 CLR 188.
159. Ibid 233 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). This distinction was subsequently applied in Austin v Commonwealth (2003) 215 CLR 185 and Clarke v Federal Commissioner of Taxation (2009) 240 CLR 272.
160. Banerji (n2) [93] and [183], respectively.
161. Monis v The Queen (2013) 249 CLR 92, 207 (Crennan, Kiefel and Bell JJ).
162. Australian Capital Television (n 5) 145 (Mason CJ).
163. [2017] FCAFC 41.
164. Ibid [110].
165. [2019] HCA 23; see similarly Coleman (n 41) 122–3 (Heydon J). The joint reasons referred to the finding of the tribunal that some of Ms Banerji’s comments were ‘intemperate, even vituperative’: [2], but this did not figure prominently in the subsequent reasoning.
166. (2004) 220 CLR 1, 91; in the same case Gummow and Hayne JJ said (78–9) that laws which had the purpose of prohibiting the use of hurtful words to another could not be justified given the constitutional freedom; to like effect Roberts v Bass (2002) 212 CLR 1, 63 (Kirby J).
167. Levy (n 39) 613 (Toohey and Gummow J) (stating that political communication included unreasoned and/or emotional comments), 623 (McHugh J) (stating the freedom protects speech that is false, unreasoned and emotional).
168. Mill (n 13) 121–2.
169. Max Spry, ‘Senior Public Servants, Political Discrimination and Dismissals’ (2000) 59(2) Australian Journal of Public Administration 95 (‘Spry’) notes an unreported decision of the former Queensland Anti-Discrimination Commission (Byrne v Queensland, H135/96, 27 November 1998), where a Director-General was dismissed within weeks of a change of government. The new government admitted the employee was not dismissed based on her aptitude, competence or professionalism. The Tribunal upheld the employee’s complaint of unlawful discrimination based on political opinion. The employee was a member of the political party which lost office shortly before she was terminated.
170. This obviates the principle of statutory interpretation that might otherwise be applicable, namely that in cases of conflict between statutes, the specific provision overrides the general: lex specialis derogat legi generali.
171. There might be possible analogies with the recent case involving footballer Israel Folau, though he was arguing that he was dismissed because of his religious, rather than political, views. That case was settled confidentially. At the time of writing, the Federal Parliament is considering a religious freedom bill that seeks to enshrine the right of an employee to speak their mind on matters pertaining to religion, and to prevent some employers from dismissing an employee because they expressed views that the employer disfavours. These developments are occurring in the context of the right to express religion-based views and thus have only indirect and incidental bearing, if any, on the freedom that an employee might have in relation to political communication. I have written elsewhere about the legal issues in the Folau case: Anthony Gray ‘The Lawfulness of the Dismissal/Termination of an Employee Who Has Expressed ‘Unwelcome' Views (2019) 47(4) Australian Business Law Review 260.
172. Spry (n 169) 99.
173. Commonwealth Bank of Australia v Barker (2014) 253 CLR 169.