25 September 2023

High Court lays down APS law

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The High Court of Australia has confirmed a decision of the Administrative Appeals Tribunal that a member of the Australian Public Service (APS) be dismissed for criticising Government policies online.

Hearing the appeal, the Court found that the member had breached the APS Code of Conduct requiring employees to “at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS”.

It found that the Values required the APS to be “apolitical, performing its functions in an impartial and professional manner”.

In its decision in Comcare v Michaela Banerji, the Court ruled that the Public Service Act, which contains the Code and Values, did not impose an unjustified burden on the implied freedom of political communication, with the result that the termination of the respondent’s employment with the Commonwealth was not unlawful.

The Court found that breaches of the Code of Conduct and a failure to uphold “APS Values and the integrity and good reputation of the APS” meant an Agency could impose sanctions on an APS employee found to have breached the code, including termination of employment.

In its judgement, the Court said that while an employee in the Department of Immigration and Citizenship, the respondent used the Twitter handle @LaLegale to broadcast more than 9,000 tweets.

It said many of the tweets were critical of the Department, its other employees, policies and administration, and the Government and Opposition immigration policies and Members of Parliament.

“Departmental and APS guidelines cautioned against unofficial public comment and recorded a ‘rule of thumb’ that anyone posting material online should assume that their identity and employment would be revealed,” it said.

The respondent had claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 for injury resulting from the termination of her employment.

The Community and Public Sector Union described the Court’s decision as “disappointing” saying it had serious implications for freedom of speech.

The National Secretary of the CPSU, Nadine Flood said the union had always defended the rights of Public Servants to participate in Australia’s democracy “like everyone else can”.

“People working in Commonwealth Agencies should be allowed normal rights as citizens,” Ms Flood said.

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