High Court free speech ruling will impact public servants, but how will it affect the rest of us?

Key Points
  • The High Court of Australia recently set aside an AAT finding which in effect may diminish employees right to free speech and constitutional freedoms.
  • This judgment heralds that a High Court is willing to protect an employer's core mission from internal criticism and allow employment relationships to impact upon the actions and freedoms of employees in their private capacity.
  • Although this case's implications were restricted to APS employees, it’s ramifications may be much more widespread.
With the demise of the master/servant relationship in the employment sphere 120 years ago, surely our private opinions are no longer owned by our employers.  In the privacy of our own garret, we must be free to pen our most impassioned feelings.  And if not obviously published in a manner that connects such ruminations to our employer, surely we must be free from consequence?

On Wednesday of this week, the High Court of Australia handed down a unanimous ruling which diminished (and possibly quashed) such noble aspirations. It set aside an AAT finding that previously found that the Department of Immigration and Border Protection imposed an unreasonable burden on the implied freedom of political communication on a previous employee, who was dismissed by the government department for her political tweets. The AAT further ruled that her dismissal was unlawful.

The Department’s employee used the Twitter handle @LaLegale to consistently broadcast more than 9,000 tweets during her employment, which were deemed to be critical of the department, its policies and administration, opposition leaders and general Government policies. The Department dismissed the employee in September 2013 for these highly critical tweets.

The Department relied upon the Australian Public Service (“APS”) Code of Conduct (“the Code”) to demonstrate that the employees tweets breached the Public Service Act. The Code requires all APS employees, at all times, to behave in a way that upholds the APS Values and the integrity and good reputation of the APS. The department further relied upon the fact its employees should uphold the Value of being seen as “apolitical” and the belief that the APS functions in an impartial and professional manner. The Act outlines that any breach of this Code allows an Agency Head to impose sanctions on an APS employee, including the ability to terminate the employees employment with the relevant department.

The AAT found that a dismissal for this reason was an unjustified burden on the implied freedoms of political communication and was deemed unlawful. The High Court disagreed and overturned this decision.

The High Court unanimously held that the provisions relied upon by the Department to dismiss the employee were consistent with the constitutionally prescribed system of government, namely the maintenance of an apolitical public service. The Court further held that the provisions in the Code were not excessive and were considered proportionate and appropriate to their purpose. Additionally, the provisions did not impose an unjustified burden on the implied constitutional freedoms of the employee. The High Court further stressed that while the Australian Constitution offers an implied right to free political speech, it does not provide individuals with a personal guarantee for free speech. The decision of the AAT was subsequently overturned for these reasons.

The significance of this judgment is the fact that the obligations intrinsic to the employment relationship can directly impact upon the actions and freedoms of an employee in their private capacity.   Whilst the comparable current legal proceedings initiated by Israel Folau against Rugby Australia broadly wrestle with a similar quandary, a decision of a superior court in his case will have wider implications for the general public.  This La Legale judgment was largely restricted in its implications to APS employees.   However, this case heralds a High Court that is willing to protect an employer’s core mission from internal criticism by the very employees engaged to carry it out, even if the employee makes such comments anonymously.

Post by Warwick Ryan and Tayah Stevenson

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