In Australia, the Australian Public Service (‘APS’) is statutorily required to be ‘apolitical, performing its functions in an impartial and professional manner’ (s 10(1) of the Public Service Act 1999 (‘PSA’)). The employees of the APS are required to uphold this value and reputation ‘at all times’ (s 13(11) PSA). In the recent High Court of Australia decision of Comcare v Banerji [2019] HCA 23, the issue was whether these provisions unduly burden the constitutionally implied freedom of political communication.

Ms Banerji was an employee of the Department of Immigration and Citizenship. Through her Twitter account, she posted a lot of critical comments directed at the Department’s employees and administration, immigration policies and members of Parliament ([2]). ‘Some of the tweets are reasonably characterised as intemperate, even vituperative, in mounting personal attacks on government and opposition figures’. The Department received complaints for this and her employment was terminated ([5]).

The Court unanimously held that the provisions did not impose an unjustified burden on the implied freedom of political communication, and the termination of the employment was not unlawful. This is because the aim of the provisions is to ensure the employees ‘faithfully and professionally implement accepted government policy, irrespective of APS employees’ individual personal political beliefs and predilections’ ([34]).

The most interesting point was that the Court held that the provisions would extend to anonymous communications made by APS employees (e.g. posting anonymously on Tweeter in a pseudo-name). It is noteworthy that not all political communications are caught, but only those which do not uphold the value, integrity and reputation of APS ([25], [140], [183], [197]). Also, employees do not have to be apolitical in their private affairs, so long as they do not behave ‘in a way that suggests they cannot act apolitically or impartially in their work’ ([181]).

It was held that anonymity should not make a difference, because, firstly, anonymous communications are at risk of ceasing to be anonymous. Secondly, the communication may still damage the good reputation of the APS ([36]). Thirdly, the provisions do not only intend to create an appearance of impartiality, but also ‘actual observance of impartiality’. Employees should not be able to freely ‘engage with impunity in clandestine publication of praise for or criticism’ ([105]).

It is interesting to note that the question on whether criticisms could be made was faced by the US with very different attitudes (though note the difference between the implied freedom of political communication and the freedom of speech: [19-20]). The Supreme Court affirmed in Lane v. Franks 134 S. Ct. 2369 (2014) that ‘citizens do not surrender their First Amendment rights by accepting public employment’. This is because ‘there is considerable value… in encouraging, rather than inhibiting, speech by public employees. For “[g]overnment employees are often in the best position to know what ails the agencies for which they work.”’

However, the US Court also recognized the importance for the government to ensure efficiency. Therefore, the right to free speech is only engaged if (1) the employee ‘spoke as a citizen on a matter of public concern’ and (2) the government did not have ‘an adequate justification for treating the employee differently from any other member of the general public’.

On the one hand, the Australian approach provides more certainty: employee must uphold the reputation of the APS (a criticism of one’s own department would unlikely be allowed, other than an ‘objective and informative policy discussion’: [183], [197]); on the other hand, the US approach allows criticisms (both Lane and Pickering v. Board of Education 391 U.S. 563 (1968) involved severe criticisms). Although the US and Australia have different value aims for public service, the US Court makes the forceful point that the employees know the best from inside. Arguably, allowing constructive criticisms can sometimes ensure greater accountability and transparency, and does not necessarily involve unfaithfulness or disloyalty, nor would it necessarily mean an employee would not be able to perform the duty in an efficient and impartial manner (and thus can still be consistent with the statutory aims). It may be helpful to explicitly differentiate constructive and rationally-expressed criticisms from harsh and baseless criticisms.