Comcare v Banerji

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

COMCARE  APPELLANT

AND

MICHAELA BANERJI  RESPONDENT

Comcare v Banerji

[2019] HCA 23

7 August 2019

C12/2018

ORDER

1.Appeal allowed.

2.Set aside the decision of the Administrative Appeals Tribunal made on 16 April 2018 and, in its place, order that the reviewable decision of 1 August 2014 be affirmed.

3.The respondent pay the appellant's costs of the appeal.

Representation

B J Tronson for the appellant (instructed by Australian Government Solicitor)

R Merkel QC with C G Winnett and C J Tran for the respondent (instructed by Lander & Co)

S P Donaghue QC, Solicitor-General of the Commonwealth, and C L Lenehan with J D Watson for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales, with F I Gordon for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor's Office (NSW))

C D Bleby SC, Solicitor-General for the State of South Australia, with L Gavranich for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor's Office (SA))

J A Thomson SC, Solicitor-General for the State of Western Australia, with N T L John for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor's Office (WA))

Australian Human Rights Commission appearing as amicus curiae, limited to its written submissions

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Comcare v Banerji

Constitutional law (Cth) – Implied freedom of communication on governmental and political matters – Where Australian Public Service ("APS") Code of Conduct ("Code") included requirement in s 13(11) of Public Service Act 1999 (Cth) that employees behave in way that upholds APS Values and integrity and good reputation of APS – Where APS Values in s 10(1) of that Act included that APS is apolitical, performing functions in impartial and professional manner – Where Agency Head empowered by s 15(1) of that Act to impose sanctions on employee found to have breached Code, including termination of employment – Where employee of government Department published tweets critical of Department, its employees, policies and administration, Government and Opposition immigration policies, and members of Parliament – Where employment with Commonwealth terminated for breach of Code – Where employee claimed compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) for "injury", defined to exclude injury suffered as result of reasonable administrative action taken in reasonable manner in respect of employee's employment – Whether ss 10(1), 13(11) and 15(1) of Public Service Act impose effective burden on implied freedom – Whether burden on implied freedom justified – Whether impugned provisions for legitimate purpose – Whether provisions suitable, necessary and adequate in balance.

Words and phrases – "adequate in its balance", "anonymous", "apolitical", "APS Code of Conduct", "effective burden", "impartial", "implied freedom of political communication", "integrity", "legitimate purpose", "necessary", "public servants", "public service", "reasonably appropriate and adapted", "suitable", "system of representative and responsible government", "tweets", "unjustified burden".

Fair Work Act 2009 (Cth), Pt 3.2.
Public Service Act 1999 (Cth), ss 10(1), 13(11), 15(1), 33(1).
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A(1), 14.

1. KIEFEL CJ, BELL, KEANE AND NETTLE JJ. This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") removed into this Court pursuant to s 40(1) of the Judiciary Act 1903 (Cth) on the application of the Attorney-General of the Commonwealth (intervening). The question for decision is whether, as the Tribunal held[1], ss 10(1), 13(11) and 15(1) of the Public Service Act 1999 (Cth) as at 15 October 2012 ("the impugned provisions") imposed an unjustified burden on the implied freedom of political communication, with the result that the termination of the respondent's employment with the Commonwealth for breaching the Australian Public Service ("APS") Code of Conduct was not reasonable administrative action taken in a reasonable manner with respect to her employment within the exclusion in s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Compensation Act"). For the reasons which follow, the impugned provisions did not impose an unjustified burden on the implied freedom of political communication, and the termination of the respondent's employment with the Commonwealth was not unlawful.

   [1]Banerji and Comcare (Compensation) [2018] AATA 892 at [67], [119], [128].

   The facts

2. The uncontroversial facts of the matter were as follows. On 10 April 2006, the respondent was offered and accepted employment as an ongoing APS 6 employee within the Ombudsman and Human Rights and Equal Opportunity Commission Section of what became the Department of Immigration and Citizenship ("the Department")[2].  She commenced work in that position on 29 May 2006[3].  At some time prior to 7 March 2012, she began broadcasting tweets on matters relevant to the Department, using the Twitter handle "@LaLegale"[4].  There were more than 9,000 such tweets, at least one of which was broadcast during the respondent's working hours[5], and many of which were variously critical of the Department, other employees of the Department, departmental policies and administration, Government and Opposition immigration policies, and Government and Opposition members of Parliament[6].  The Tribunal found[7] that "[s]ome of the tweets are reasonably characterised as intemperate, even vituperative, in mounting personal attacks on government and opposition figures".

   [2]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(3)].

   [3]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(4)].

   [4]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(13)].

   [5]Banerji and Comcare (Compensation) [2018] AATA 892 at [26]‑[27].

   [6]Banerji and Comcare (Compensation) [2018] AATA 892 at [8], [40] fn 3.

   [7]Banerji and Comcare (Compensation) [2018] AATA 892 at [109] (emphasis added).

3. On 7 March 2012, the Workplace Relations and Conduct Section of the Department ("the WRCS") received a complaint from one of its employees, which was copied to the National Communications Manager, alleging that the respondent was inappropriately using social media in contravention of the APS Code of Conduct[8].  After reviewing the complaint, the Director, WRCS determined that the complaint did not contain sufficient material to proceed with a formal APS Code of Conduct investigation, and advised the complainant of his determination[9].

   [8]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(14)].

   [9]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(15)].

4. On 9 May 2012, the WRCS received a second, more detailed complaint regarding the respondent's conduct[10].  On the basis of that complaint, on or around 15 May 2012, the Director determined to initiate an investigation into whether the respondent's conduct gave rise to possible breaches of the APS Code of Conduct, and, on 23 July 2012, the WRCS informed the respondent of the Director's determination[11].

   [10]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(16)].

   [11]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(16)‑(17)].

5. Between 15 May 2012 and 13 September 2012, the Assistant Director, WRCS conducted the investigation into whether the respondent's conduct gave rise to possible breaches of the APS Code of Conduct and prepared an investigation report dated 13 September 2012[12].  On 20 September 2012, the Director, Workforce Design and Strategy, being an authorised delegate of the Secretary of the Department, sent a letter to the respondent setting out a proposed determination of breach of the APS Code of Conduct and inviting the respondent to provide a response[13].  On the same day, the respondent sent an email to the WRCS responding to the proposed determination of breach[14].  On 15 October 2012, the delegate determined that the respondent had breached the APS Code of Conduct and proposed a sanction of termination of employment[15].  The respondent was provided with the determination and given seven days to provide a response[16].

   [12]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(18)].

   [13]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(19)], [12].

   [14]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(20)].

   [15]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(21)].

   [16]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(21)].

6. On 19 October 2012, the Director, WRCS and the delegate met the respondent and her union representative at the respondent's request[17].  During that meeting, the respondent admitted to having broadcast tweets under the handle @LaLegale in which she criticised Government immigration policy and her direct departmental supervisor, and, on the same day, the respondent sent an email to the complainant offering an "unreserved" apology[18].  Thereafter, she sought and was granted a number of extensions of time in which to provide a response to the proposed determination of sanction[19].  The last extension granted was until 2 November 2012[20].  On 1 November 2012, the respondent instituted proceedings in the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) seeking interim and final injunctions to restrain the Department from proceeding with the proposed sanction of termination of her employment[21].

   [17]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(22)].

   [18]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(22)‑(23)].

   [19]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(24)].

   [20]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(24)].

   [21]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(25)].

7. On 2 November 2012, the respondent submitted a response to the proposed sanction of termination of employment[22].  On the same day, her representative, the Media, Entertainment and Arts Alliance, also submitted a written response to the proposed determination of sanction, and, on 9 November 2012, submitted a further response[23].  On 11 November 2012, the respondent submitted another response dated 9 November 2012[24].  On 17 November 2012, she sent an email to the Director, WRCS withdrawing her admission and apology and alleging that the process underlying the APS Code of Conduct investigation and termination decision was flawed[25].

   [22]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(26)].

   [23]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(27)‑(28)].

   [24]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(29)].

   [25]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(30)].

8. On 9 August 2013, the Federal Circuit Court rejected the respondent's claim for interim injunction[26].  On 15 August 2013, the Director, WRCS wrote to the respondent setting out the steps which the Department proposed to take to finalise the process relating to the respondent's breaches of the APS Code of Conduct[27].  The letter stated that the delegate would consider all of the information provided by and on behalf of the respondent in response to the 15 October 2012 determination, that the delegate would then write to the respondent advising her of the proposed sanction (if any) and inviting her to make any further submissions she may wish to make concerning it, and that the delegate would thereafter complete the review process and make a final determination as to the sanction to be imposed.  The letter also stated that any sanction would not be implemented until 14 days after the delegate had made the determination.  On 26 August 2013, the delegate provided the respondent with a further opportunity to respond to the proposed sanction of termination in line with the process set out in the letter of 15 August 2013, and, on 30 August 2013, the respondent provided a further response[28]. On 12 September 2013, the delegate wrote to the respondent setting out the delegate's decision to impose a sanction of termination of employment under s 15 of the Public Service Act[29].

   [26]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(31)].

   [27]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(32)‑(33)].

   [28]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(33)‑(34)].

   [29]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(35)].

9. On 13 September 2013, the Director, WRCS (who at that time was acting as the Assistant Secretary, People Services and Systems Branch, and held a delegation under s 78(7) of the Public Service Act to exercise the power to make decisions under s 29(1)) wrote to the respondent providing her with notice of termination of employment to take effect from close of business on 27 September 2013[30].  On 28 March 2014, the respondent entered into a Deed of Agreement with the Commonwealth of Australia represented by the Department to settle the proceedings in the Federal Circuit Court[31].

   [30]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(36)].

   [31]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(37)].

10. On 18 October 2013, the respondent lodged a claim for compensation under s 14 of the Compensation Act for an "injury" within the meaning of s 5A(1) of the Compensation Act, said to be comprised of an "adjustment disorder characterised by depression and anxiety" being an aggravation of an underlying psychological condition arising out of termination of the respondent's employment[32].

    [32]Banerji and Comcare (Compensation) [2018] AATA 892 at [2], [3(5)‑(10)].

11. On 24 February 2014, a delegate of the appellant rejected the claim for compensation, and, on 1 August 2014, another delegate of the appellant affirmed that determination, on the basis that the termination of the respondent's employment was reasonable administrative action taken in a reasonable manner in respect of the respondent's employment, within the meaning of s 5A(1) of the Compensation Act, and, consequently, that such injury as the respondent may have suffered (if any) was not an "injury" within the meaning of that section[33].

    [33]Banerji and Comcare (Compensation) [2018] AATA 892 at [2], [3(12)].

    Relevant statutory provisions

12. Section 14 of the Compensation Act provided, so far as is relevant, that the appellant is liable to pay compensation in accordance with the Compensation Act in respect of an "injury" suffered by an employee if the injury results in death, incapacity for work, or impairment.

13. Section 5A(1) of the Compensation Act defined "injury" as including, in substance, an aggravation of a mental injury that arose out of, or in the course of, employment, but as excluding any such aggravation as is suffered as a result of reasonable administrative action taken in a reasonable manner in respect of an employee's employment.

14. Section 10 of the Public Service Act defined the APS Values, so far as is relevant, as follows:

    "(1)     The APS Values are as follows:

    (a)the APS is apolitical, performing its functions in an impartial and professional manner;

    ...

    (g)the APS delivers services fairly, effectively, impartially and courteously to the Australian public and is sensitive to the diversity of the Australian public".

15. Section 13 of the Public Service Act set out the APS Code of Conduct, so far as is relevant, as follows:

    "(1)An APS employee must behave honestly and with integrity in the course of APS employment.

    ...

    (7)An APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment.

    ...

    (11)An APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS."

16. Section 15 of the Public Service Act provided for the establishment of procedures for the determination of breach, in sub-s (3), and prescribed the sanctions available, subject to any limitations in the regulations, as follows:

    "(1)An Agency Head may impose the following sanctions on an APS employee in the Agency who is found (under procedures established under subsection (3)) to have breached the Code of Conduct:

    (a)      termination of employment;

    (b)      reduction in classification;

    (c)      re-assignment of duties;

    (d)      reduction in salary;

    (e)      deductions from salary, by way of fine;

    (f)       a reprimand."

    Departmental and APS guidelines

17. Both the Public Service Commissioner and the Department promulgated guidelines to assist employees in complying with their obligations under the Public Service Act[34].  At relevant times, the departmental guidelines explained that "[p]ublic comment, in its broadest sense, includes comment made on political or social issues at public speaking engagements, during radio or television interviews, [and] on the internet", and cautioned that it was not appropriate for a Department employee to make unofficial public comment that is, or is perceived as, compromising the employee's ability to fulfil his or her duties professionally in an unbiased manner (particularly where comment is made about Department policy and programmes); so harsh or extreme in its criticism of the Government, a member of Parliament or other political party and their respective policies that it calls into question the employee's ability to work professionally, efficiently or impartially; so strongly critical of departmental administration that it could disrupt the workplace; or unreasonably or harshly critical of departmental stakeholders, their clients or staff[35].  Similar, more extensive guidance was provided in Australian Public Service Commission Circular 2012/1 ("the APS Guidelines"), which recorded that, "[a]s a rule of thumb, irrespective of the forum, anyone who posts material online should make an assumption that at some point their identity and the nature of their employment will be revealed"[36].  In turn, the tenor of the APS Guidelines was further reiterated for employees of the Department in a document entitled "'What is Public Comment?'  Workplace Relations and Conduct Section Fact Sheet"[37].

    [34]Banerji and Comcare (Compensation) [2018] AATA 892 at [35].

    [35]Banerji and Comcare (Compensation) [2018] AATA 892 at [36].

    [36]Banerji and Comcare (Compensation) [2018] AATA 892 at [37].

    [37]Banerji and Comcare (Compensation) [2018] AATA 892 at [38].

    The proceedings before the Tribunal

18. Before the Tribunal, the parties were agreed that the only issue for the Tribunal was:

    "whether or not the termination of the [respondent's] employment with the Commonwealth falls outside the exclusion in s 5A(1) of the Act, having regard to the implied freedom of political communication."[38]

    [38]Banerji and Comcare (Compensation) [2018] AATA 892 at [3(38)].

19. It is unfortunate that the issue was framed in those terms for it appears to have led the Tribunal to approach the matter, wrongly, as if the implied freedom of political communication were a personal right like the freedom of expression guaranteed by ss 1 and 2(b) of the Canadian Charter of Rights and Freedoms or the freedom of speech guaranteed by the First Amendment to the Constitution of the United States.  Thus, in their reasons for decision, the Tribunal spoke[39] in terms of the impugned provisions imposing a "serious impingement on Ms Banerji's implied freedom", and stated[40] that "[t]he burden of the Code on Ms Banerji's freedom was indeed heavy".  The Tribunal reasoned[41] that Canadian jurisprudence as to the balance to be struck between an individual government employee's "duty of fidelity and loyalty" and the "countervailing rights of public servants to take part in a democratic society" was "illuminative of the appropriate balance to be struck between the implied freedom and the fostering of an apolitical [Australian] public service".  And, ultimately, the Tribunal decided[42] the matter, erroneously, on the basis "that the use of the Code as the basis for the termination of Ms Banerji's employment impermissibly trespassed upon her implied freedom of political communication".

    [39]Banerji and Comcare (Compensation) [2018] AATA 892 at [117] (emphasis added).

    [40]Banerji and Comcare (Compensation) [2018] AATA 892 at [119] (emphasis added).

    [41]Banerji and Comcare (Compensation) [2018] AATA 892 at [89], [104].

    [42]Banerji and Comcare (Compensation) [2018] AATA 892 at [120] (emphasis added).

20. As has been emphasised by this Court repeatedly, most recently before the Tribunal's decision in this matter in Brown v Tasmania[43], the implied freedom of political communication is not a personal right of free speech. It is a restriction on legislative power which arises as a necessary implication from ss 7, 24, 64 and 128 and related sections of the Constitution and, as such, extends only so far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution[44].  Accordingly, although the effect of a law on an individual's or a group's ability to participate in political communication is relevant to the assessment of the law's effect on the implied freedom, the question of whether the law imposes an unjustified burden on the implied freedom of political communication is a question of the law's effect on political communication as a whole[45].  More specifically, even if a law significantly restricts the ability of an individual or a group of persons to engage in political communication, the law will not infringe the implied freedom of political communication unless it has a material unjustified effect on political communication as a whole.

    [43](2017) 261 CLR 328 at 360 [90], 374 [150] per Kiefel CJ, Bell and Keane JJ, 398 [237], 407 [258], 410 [262] per Nettle J, 430 [313], 466 [433], 475 [465], 476 [469] per Gordon J, 503 [559] per Edelman J; [2017] HCA 43.

    [44]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ; [1997] HCA 25.

    [45]Wotton v Queensland (2012) 246 CLR 1 at 31 [80] per Kiefel J; [2012] HCA 2; Unions NSW v New South Wales (2013) 252 CLR 530 at 553‑554 [35]‑[36] per French CJ, Hayne, Crennan, Kiefel and Bell JJ, 574 [119] per Keane J; [2013] HCA 58; Brown v Tasmania (2017) 261 CLR 328 at 360 [90], 374 [150] per Kiefel CJ, Bell and Keane JJ.

21. For that reason, the way in which the Tribunal decided the matter was misconceived and the Tribunal's decision must be set aside.

    The respondent's contentions

22. Before this Court, the respondent did not contend that the question of whether the impugned provisions impose a burden on the implied freedom of political communication should be decided on any basis other than the effect of the impugned provisions on political communication as a whole.  Instead, she sought to argue that, upon their proper construction, the impugned provisions did not apply to what she characterised as "anonymous" communications – being "communications whose immediate context evinces no connection to the speaker's status as an APS employee (eg by giving her or his name, or position as a public servant)" – and that, because the tweets which she broadcast did not ex facie disclose her true name or the fact of her being an employee of the APS, they were "anonymous" communications to which the impugned provisions did not apply.  In the alternative, the respondent contended that, insofar as the impugned provisions purported to authorise sanctions against an APS employee for "anonymous" communications, they imposed an unjustified burden on the implied freedom of political communication and were for that reason invalid.  In the further alternative, the respondent argued that, if the impugned provisions did not of themselves impose an unjustified burden on the implied freedom, the decision to terminate the respondent's employment as an employee of the APS on the basis of her "anonymous" communications was vitiated by the decision maker's failure explicitly to take into account the effect of the implied freedom.

    The construction argument

23. For reasons given in the course of the hearing, the Court declined to entertain the respondent's argument that the impugned provisions did not extend to "anonymous" communications.  The Court did so because the argument differed fundamentally from the way in which the respondent put her case before the Tribunal and because, if she had put it that way before the Tribunal, it is not improbable that the appellant would have called evidence illustrative of the damage to reputation and integrity of the APS likely to have been caused by so‑called anonymous tweets of the kind broadcast by the respondent.  Lest it be thought, however, that the respondent was thereby deprived of a real chance of demonstrating that her employment was not lawfully terminated, there is no reason to suppose that "anonymous" communications cannot fail to uphold the integrity and good reputation of the APS within the meaning of the impugned provisions.

24. As was explained in detail in the guidelines to APS employees earlier set out[46] (which were before the Tribunal), as a rule of thumb, anyone who posts material online, particularly on social media websites, should assume that, at some point, his or her identity and the nature of his or her employment will be revealed.  The risk of identification which justifies that rule of thumb is obvious, and it is borne out by the facts of this case.  Further, as was also explained in the guidelines to APS employees, and, too, is obvious, where an APS employee broadcasts tweets which are harsh or extreme in their criticism of the Government or Opposition or their respective policies, or of individual members of Parliament whatever their political persuasion, and the nature of the author's employment is later discovered, as it was in this case, the fact that an employee of the APS is then seen to have engaged in conduct of that kind is bound to raise questions about the employee's capacity to work professionally, efficiently and impartially; is likely seriously to disrupt the workplace; and, for those reasons, is calculated to damage the integrity and good reputation of the APS.  And, where the employee broadcasts tweets commenting on policies and programmes of the employee's Department or which are critical of the Department's administration, damage to the good reputation of the APS is apt to occur even if the author's identity and employment are never discovered.  In light of these considerations, it would be facile to suppose a parliamentary intention to exclude communications of the kind broadcast by the respondent.

    [46]See [17] above.

    The implied freedom argument

25. The respondent's first alternative implied freedom argument also faces difficulties at a number of levels. To begin with, contrary to the assumption which is implicit in the argument, s 13(11) does not purport to proscribe all forms of "anonymous" communications: only those which fail to "uphold" the APS Values and the integrity and good reputation of the APS within the meaning of s 13(11) of the Public Service Act.

26. Secondly, as was observed by the Solicitor-General of the Commonwealth, appearing on behalf of the Attorney-General of the Commonwealth (intervening), there are undoubtedly some forms of "anonymous" communication that would so damage the integrity and good reputation of the APS that, on any view of the matter, their proscription would be justified. An example would be a Permanent Secretary broadcasting "anonymous" tweets which are highly disparaging of the Minister, the Government or Opposition, Government or Opposition policy, departmental administration or implementation of policy, or departmental staff, where the identity of the author is later discovered. As that example demonstrates, it is in each case a question of fact and degree whether or not a given "anonymous" communication infringes s 13(11) by failing to uphold the APS Values and the integrity of the APS.

27. Thirdly, and critically, the respondent did not contend before the Tribunal or before this Court that, apart from the implied freedom, it would not be within the legislative competence of the Commonwealth Parliament to enact legislation in the form of s 13(11) of the Public Service Act requiring APS employees at all times to behave in a way that upholds the APS Values and the integrity and good reputation of the APS. Nor did the respondent contend before the Tribunal or before this Court that, apart from the implied freedom, the sanction of dismissal imposed on her under s 15 of the Public Service Act for her contravention of s 13(11) of that Act would not be a lawful, proportionate response to the nature and gravity of her misconduct. Consequently, as the matter was presented to the Tribunal and this Court, the respondent must be taken to have accepted that her conduct in broadcasting the "anonymous" tweets was conduct which failed to uphold the APS Values and the integrity and good reputation of the APS within the meaning of s 13(11) and that, but for the implied freedom, the sanction of dismissal was warranted.

28. In the result, the respondent's implied freedom argument amounts in effect to saying that, despite the fact that her conduct in broadcasting the "anonymous" tweets was conduct which failed to uphold the APS Values and the integrity and good reputation of the APS, Parliament was precluded from proscribing the conduct because its proscription imposed an unjustified burden on the implied freedom of political communication.  To say the least, that is a remarkable proposition.

    No unjustified burden on the implied freedom

    Effective burden

29. A law which prohibits or limits political communication to any extent will generally be found to impose an effective burden on the implied freedom of political communication[47]. The appellant, before the Tribunal and again before this Court, and the Attorney-General of the Commonwealth (intervening) accepted that s 10(1) in combination with s 13(11) imposes an effective burden on the implied freedom. That concession was rightly made. The restrictions which s 10(1) in conjunction with s 13(11) imposes on the ability of employees of the APS to engage in public comment on government and political matters must have a material effect on the totality of political communication. The question is whether that burden is justified according to the two part test of whether the impugned law is for a legitimate purpose consistent with the system of representative and responsible government mandated by the Constitution and, if so, whether that law is reasonably appropriate and adapted to the achievement of that objective[48].

    [47]See, eg, APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at 351 [28] per Gleeson CJ and Heydon J; [2005] HCA 44; Wotton (2012) 246 CLR 1 at 24 [54] per Heydon J; Monis v The Queen (2013) 249 CLR 92 at 142‑146 [108]‑[122] per Hayne J; [2013] HCA 4; Unions NSW (2013) 252 CLR 530 at 555 [40] per French CJ, Hayne, Crennan, Kiefel and Bell JJ; Tajjour v New South Wales (2014) 254 CLR 508 at 578‑579 [145]‑[146], 582 [155]‑[156] per Gageler J; [2014] HCA 35.

    [48]Lange (1997) 189 CLR 520 at 561‑562 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ; McCloy v New South Wales (2015) 257 CLR 178 at 194 [2(B)] per French CJ, Kiefel, Bell and Keane JJ; [2015] HCA 34; Brown v Tasmania (2017) 261 CLR 328 at 363‑364 [102]‑[104] per Kiefel CJ, Bell and Keane JJ, 413 [271], 416 [277] per Nettle J.

    Legitimate purpose

30. Section 3 of the Public Service Act proclaims the "main objects" of the Act, which include establishing "an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public", providing "a legal framework for the effective and fair employment, management and leadership of APS employees", and establishing "rights and obligations of APS employees". As appears from the text and context of ss 10(1), 13(11) and 15(1), the legislative purpose of those provisions is to ensure that employees of the APS at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS. And as has been seen, the APS Values are attuned to the maintenance and protection of an apolitical public service that is skilled and efficient in serving the national interest.

31. There can be no doubt that the maintenance and protection of an apolitical and professional public service is a significant purpose consistent with the system of representative and responsible government mandated by the Constitution. Section 64 of the Constitution, which provides for the establishment of departments of state[49], and s 67, which provides for the appointment and removal of officers of the Executive Government other than Ministers[50], attest to the significance of the APS as a constituent part of the system of representative and responsible government mandated by the Constitution.  The constitutional significance of the APS is also to be understood in light of the Northcote‑Trevelyan British civil service reforms of the mid-nineteenth century[51], which had been adopted by some of the Australian colonies by the time of Federation[52] and which were almost immediately after Federation adopted by the Commonwealth[53].  Thus, as was observed in Federal Commissioner of Taxation v Futuris Corporation Ltd[54], apolitical, skilled and efficient service of the national interest has been the ethos of the APS throughout the whole period of the public administration of the laws of the Commonwealth.

    [49]See Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 435‑436 per Dawson, Toohey and Gaudron JJ; [1997] HCA 36; Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 402‑403 [13]‑[15] per Gleeson CJ, 459‑460 [210]‑[212] per Gummow and Hayne JJ; [2001] HCA 51; McCloy (2015) 257 CLR 178 at 224 [105] per Gageler J.

    [50]See Bradshaw v The Commonwealth (1925) 36 CLR 585 at 589‑590 per Knox CJ; [1925] HCA 42; Edwards v The Commonwealth (1935) 54 CLR 313 at 323‑324 per Dixon J; [1935] HCA 84; Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 92‑93 [120] per Gageler J; [2016] HCA 1.

    [51]See Northcote and Trevelyan, Report on the Organisation of the Permanent Civil Service (1854) at 3, 6‑7, 18‑20.  See also Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 at 563 per Lord Greene MR.

    [52]See, eg, Board Appointed to Enquire into the Arrangements for the Better Organization of the Civil Service of the Colony, Civil Service of the Colony of Victoria (1856); Civil Service Act 1862 (Vic); Civil Service Act 1874 (SA).  See also McManus v Scott‑Charlton (1996) 70 FCR 16 at 24‑25 per Finn J; Bennett v President, Human Rights and Equal Opportunity Commission (2003) 134 FCR 334 at 348‑349 [54] per Finn J.

    [53]Commonwealth Public Service Act 1902 (Cth).

    [54](2008) 237 CLR 146 at 164 [55] per Gummow, Hayne, Heydon and Crennan JJ; [2008] HCA 32.

    Appropriate and adapted

32. A law may be regarded as reasonably appropriate and adapted or proportionate to the achievement of a legitimate purpose consistent with the system of representative and responsible government if the law is suitable, necessary and adequate in its balance[55].

    (i) Suitability

    [55]McCloy (2015) 257 CLR 178 at 194‑196 [2(B)(3)]‑[4] per French CJ, Kiefel, Bell and Keane JJ; Brown v Tasmania (2017) 261 CLR 328 at 368 [123] per Kiefel CJ, Bell and Keane JJ, 376 [158] per Gageler J, 416‑417 [278]‑[280] per Nettle J, 476‑477 [473] per Gordon J; Clubb v Edwards (2019) 93 ALJR 448 at 462 [6], 470‑471 [70]‑[74] per Kiefel CJ, Bell and Keane JJ, 506‑507 [266] per Nettle J, 533 [408], 544 [463] per Edelman J; 366 ALR 1 at 10, 21‑22, 70, 105, 121; [2019] HCA 11.

33. A law is suitable in that sense if it exhibits a rational connection to its purpose, and a law exhibits such a connection if the means for which it provides are capable of realising that purpose[56].

    [56]Tajjour (2014) 254 CLR 508 at 563 [81]‑[82] per Hayne J; McCloy (2015) 257 CLR 178 at 217 [80] per French CJ, Kiefel, Bell and Keane JJ, 232‑233 [132]‑[133] per Gageler J, 262 [234] per Nettle J; Brown v Tasmania (2017) 261 CLR 328 at 370 [132]‑[133] per Kiefel CJ, Bell and Keane JJ, 418 [281] per Nettle J; Clubb (2019) 93 ALJR 448 at 462 [6] per Kiefel CJ, Bell and Keane JJ, 507 [266(2)] per Nettle J, 544 [463] per Edelman J; 366 ALR 1 at 10, 70, 121.

34. Regardless of the political complexion of the government of the day, or its policies, it is highly desirable if not essential to the proper functioning of the system of representative and responsible government that the government have confidence in the ability of the APS to provide high quality, impartial, professional advice, and that the APS will faithfully and professionally implement accepted government policy, irrespective of APS employees' individual personal political beliefs and predilections[57]. To the same end, it is most desirable if not essential that management and staffing decisions within the APS be capable of being made on a basis that is independent of the party political system, free from political bias, and uninfluenced by individual employees' political beliefs. The requirement imposed on employees of the APS by ss 10(1) and 13(11) of the Public Service Act at all times to behave in a way that upholds the APS Values and the integrity and good reputation of the APS represents a rational means of realising those objectives and thus of maintaining and protecting an apolitical and professional public service.  The impugned provisions are suitable in the necessary sense.

    (ii) Necessity

    [57]See and compare McManus v Scott‑Charlton (1996) 70 FCR 16 at 25‑26 per Finn J; Federal Commissioner of Taxation v Day (2008) 236 CLR 163 at 180‑181 [34] per Gummow, Hayne, Heydon and Kiefel JJ; [2008] HCA 53.

35. Where, as here, a law has a significant purpose consistent with the system of representative and responsible government mandated by the Constitution and it is suitable for the achievement of that purpose in the sense described, such a law is not ordinarily to be regarded as lacking in necessity unless there is an obvious and compelling alternative which is equally practicable and available and would result in a significantly lesser burden on the implied freedom[58].  Here, the respondent's argument that the impugned provisions impose an unjustified burden on the implied freedom of political communication by proscribing "anonymous" communications thus reduces in effect to a submission that an obvious and compelling alternative to the impugned provisions would be to exclude "anonymous" communications from their scope of application.

    [58]Monis (2013) 249 CLR 92 at 214 [347] per Crennan, Kiefel and Bell JJ; Tajjour (2014) 254 CLR 508 at 550 [36] per French CJ; McCloy (2015) 257 CLR 178 at 210‑211 [57]‑[58] per French CJ, Kiefel, Bell and Keane JJ; Brown v Tasmania (2017) 261 CLR 328 at 371‑372 [139] per Kiefel CJ, Bell and Keane JJ, 418‑419 [282] per Nettle J; Clubb (2019) 93 ALJR 448 at 462 [6] per Kiefel CJ, Bell and Keane JJ, 505 [263], 507‑508 [266(3)], [267]‑[268], 509‑510 [277] per Nettle J, 548 [478]‑[480] per Edelman J; 366 ALR 1 at 10, 68, 70‑71, 74, 125‑126.

36. The argument must be rejected.  For the reasons earlier given[59], "anonymous" communications are at risk of ceasing to be anonymous, and thereby damaging the integrity and good reputation of the APS as an apolitical and professional public service.  Further, as has been explained, depending on the circumstances and content of an "anonymous" communication, the communication may damage the good reputation of the APS even while it remains anonymous.  Consequently, if the impugned provisions were restricted in their operation to communications other than "anonymous" communications, the impugned provisions would cease to operate as a deterrent against a significant potential source of damage to the integrity and good reputation of the APS.  Restricting their operation to communications other than "anonymous" communications is for that reason not an obvious and compelling alternative to their present form[60].

    [59]See [24] above.

    [60]See and compare Tajjour (2014) 254 CLR 508 at 565‑566 [90] per Hayne J.

37. In addition, it is to be observed for the sake of completeness that, to the extent that the respondent's argument proceeds upon an assumption that "anonymous" communications are more deserving of protection by the implied freedom than communications for which the speaker acknowledges responsibility, that assumption is not necessarily sound[61].

    (iii) Adequacy in balance

    [61]See Smith v Oldham (1912) 15 CLR 355 at 358‑359 per Griffith CJ, 362‑363 per Isaacs J; [1912] HCA 61.

38. If a law presents as suitable and necessary in the senses described, it is regarded as adequate in its balance unless the benefit sought to be achieved by the law is manifestly outweighed by its adverse effect on the implied freedom[62].  In this case, that directs attention to the quantitative extent of the burden and the importance of the impugned provisions to the preservation and protection of the system of representative and responsible government mandated by the Constitution[63].

    [62]Clubb (2019) 93 ALJR 448 at 462 [6], 470 [66]‑[69], 475 [102] per Kiefel CJ, Bell and Keane JJ, 508‑509 [270]‑[275] per Nettle J, 552 [497]‑[498] per Edelman J; 366 ALR 1 at 10, 20‑21, 28, 72‑73, 131. See also Davis v The Commonwealth (1988) 166 CLR 79 at 99‑100 per Mason CJ, Deane and Gaudron JJ (Wilson and Dawson JJ agreeing at 101); [1988] HCA 63; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 30‑31, 34 per Mason CJ, 78 per Deane and Toohey JJ, 94‑95 per Gaudron J, 101-102 per McHugh J; [1992] HCA 46; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 324 per Brennan J; [1994] HCA 44; McCloy (2015) 257 CLR 178 at 219 [87], 220 [91] per French CJ, Kiefel, Bell and Keane JJ; Brown v Tasmania (2017) 261 CLR 328 at 422‑423 [290] per Nettle J.

    [63]See McCloy (2015) 257 CLR 178 at 195 [2(B)(3)], 218 [84]‑[86] per French CJ, Kiefel, Bell and Keane JJ.

39. In the course of argument, reference was made to the question of whether the quantitative extent of the burden imposed by the impugned provisions was affected by the range of sanctions capable of being imposed under s 15. On one view of the matter, the issue of penalty is beside the point. If a law prohibits an employee of the APS from commenting publicly in a manner which fails to uphold the integrity and reputation of the APS, the law restricts the ability of the APS employee lawfully to engage in governmental and political communication regardless of whether the penalty for contravention is large or small[64].  On another view of the matter, however, penalty is relevant because the question of whether a law imposes a burden on the implied freedom is to be assessed according to the terms and practical effect of the law and the greater the penalty the more likely it will be that the law operates as a significant deterrent to political communication[65]. A third possibility is that the relevance of penalty will depend on the particular circumstances of a case. Here, it may be assumed that the extent of penalty is relevant. But for reasons to be explained, the penalties that may be imposed under s 15 do not suggest that the impugned provisions are not adequate in their balance.

    [64]See Brownv Tasmania (2017) 261 CLR 328 at 410 [262] per Nettle J.

    [65]See Brown v Tasmania (2017) 261 CLR 328 at 357‑358 [81], 359 [87] per Kiefel CJ, Bell and Keane JJ.

40. Section 15 of the Public Service Act provides for a range of penalties and for the selection and imposition of the appropriate penalty by the Agency Head in the exercise of discretion.  As a matter of law, that discretion must be exercised reasonably[66] and, therefore, according to the nature and gravity of the subject contravention[67].  As with other civil penalties, the essence of the task is to put a price on the contravention sufficiently high to deter repetition by the contravenor and others who might be tempted to contravene[68], but bearing in mind that a penalty of dismissal must not be "harsh, unjust or unreasonable"[69]. Unquestionably, there are cases of breach of s 13(11) that are so serious in the damage done to the integrity and good reputation of the APS that the only appropriate penalty is termination of employment. The instance earlier cited of a Permanent Secretary who publicly engages in trenchant criticism of the Secretary's Minister, Government policy or departmental administration is an obvious example. By contrast, in other cases the level of the employee involved and the nature of the conduct in issue may be such that nothing more than a reprimand is warranted. And of course between those two extremes lies a range of possible situations warranting the imposition in the reasonable exercise of discretion of differing penalties according to the particular facts and circumstances of the matter. It is not the case that every employee of the APS who commits a breach of s 13(11) by broadcasting public "anonymous" communications is liable to be dismissed. Nor is it the case that the impugned provisions provide for the imposition of a penalty which is not proportionate to the contravention. Breach of the impugned provisions renders an employee of the APS liable to no greater penalty than is proportionate to the nature and gravity of the employee's misconduct.

    [66]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 348‑349 [23]‑[24] per French CJ, 362 [63] per Hayne, Kiefel and Bell JJ, 370‑371 [88]‑[90] per Gageler J; [2013] HCA 18.

    [67]Li (2013) 249 CLR 332 at 352 [30] per French CJ, 366‑367 [74]‑[76] per Hayne, Kiefel and Bell JJ. See and compare House v The King (1936) 55 CLR 499 at 504‑505 per Dixon, Evatt and McTiernan JJ; [1936] HCA 40; Veen v The Queen [No 2] (1988) 164 CLR 465 at 472 per Mason CJ, Brennan, Dawson and Toohey JJ; [1988] HCA 14.

    [68]The Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 at 506 [55] per French CJ, Kiefel, Bell, Nettle and Gordon JJ; [2015] HCA 46, quoting Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076 at 52,152 per French J.

    [69]See Fair Work Act 2009 (Cth), Pt 3.2.

41. Section 15(3) provides for the establishment of procedures that comply with basic procedural requirements set out in Commissioner's Directions, have due regard to procedural fairness, and may differ for different categories of APS employee. An Agency Head is required to take reasonable steps to ensure that every APS employee in the Agency has ready access to the documents that set out these procedures[70]. The assessment of whether there has been a breach of s 13(11) must be undertaken in accordance with those published procedures, and, if the relevant employee is dissatisfied with the determination, the employee has a right of internal review, a further right of Tribunal merits review under s 33 – except in the case of termination of employment, in which event the employee has rights under Pt 3.2 of the Fair Work Act 2009 (Cth) for redress for unfair dismissal on the ground of it being "harsh, unjust or unreasonable" – and a right of judicial review.

    [70]Public Service Act, s 15(5).

42. Given the impugned provisions have a significant purpose consistent with the system of representative and responsible government mandated by the Constitution, and are necessary in the sense that there is no obvious and compelling alternative, there is nothing about the procedures for the assessment of the nature and gravity of contravention of s 13(11) or the imposition of the appropriate penalty in accordance with the procedures for which s 15 provides that at all supports the idea that the benefit sought to be achieved by the impugned provisions is manifestly outweighed by their effect on the implied freedom. To the contrary, the impugned provisions, including their prescription of the range of penalties and the procedures for the assessment of breach and the imposition of penalty and review, present as a plainly reasoned and focussed response to the need to ensure that the requirement of upholding the APS Values and the integrity and good reputation of the APS trespasses no further upon the implied freedom than is reasonably justified[71].

    [71]Chief of Defence Force v Gaynor (2017) 246 FCR 298 at 324 [112] per Perram, Mortimer and Gleeson JJ.

    Exercise of discretion under s 15

43. It remains to deal with the respondent's further alternative contention that the decision to terminate her employment as an employee of the APS was vitiated by the decision maker's failure to take the implied freedom into account in determining the sanction to be imposed under s 15 for breach of s 13(11). Counsel submitted that the implied freedom is an essential mandatory consideration in the exercise of the discretion and, therefore, that a decision maker's failure to consider the implied freedom constitutes a jurisdictional error which vitiates the decision[72].  Alternatively, it was submitted that, even if that were not so, the implied freedom operates as an outer limit on the range of penalties open to be imposed in exercise of the decision maker's discretion, and that, in this case, the decision maker imposed an excessive penalty of dismissal which lay beyond the boundary of the implied freedom.

    [72]See and compare Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J; [1986] HCA 40.

44. The first of those submissions must be rejected. No doubt in one sense the implied freedom imposes a limit on the sanctions that may be imposed for a breach of s 13(11) constituted of a failure to uphold the APS Values prescribed in s 10(1). If s 15(1) provided for sanctions that were not reasonably justified having regard to the implied freedom of political communication, it may be accepted that s 15(1) would be invalid and any penalty imposed under it would be unlawful, or at least unlawful to the extent that the penalty went further than was warranted by the implied freedom[73]. But as has been explained, the prohibitions imposed by s 13(11) operating in conjunction with s 10(1) are proportionate to achieving the significant purpose of maintaining and protecting an apolitical public service skilled and efficient in serving the national interest, and the prescription of sanctions in s 15(1) that may be imposed according to law for a contravention of s 13(11) trespasses no further upon the implied freedom than is reasonably justified. Consequently, provided a decision maker imposing a penalty under s 15 acts reasonably, and so in accordance with the legal requirement that the penalty be proportionate to the nature and gravity of the contravention and the personal circumstances of the employee, there can be no risk of infringement of the implied freedom. If a decision maker imposes a manifestly excessive penalty, it will be unlawful because the decision maker has acted unreasonably[74], not because of the decision maker's failure to turn his or her mind to, or failure expressly to mention, the implied freedom.

    [73]See Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 at 612‑614 per Brennan J; [1986] HCA 60; Wotton (2012) 246 CLR 1 at 13‑14 [21] per French CJ, Gummow, Hayne, Crennan and Bell JJ, 34 [91] per Kiefel J.

    [74]Li (2013) 249 CLR 332 at 348‑349 [23] per French CJ. See also Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 757-758 per Dixon J; [1937] HCA 15; Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J; [1947] HCA 21.

45. So to conclude does not mean that the implied freedom may not be a relevant consideration in the exercise of different discretions under other legislation[75]. Whether it is may depend on the terms of the legislation and the nature and scope of the discretion. But for the reasons stated, it is no part of a decision maker's function in imposing penalty under s 15 to take the implied freedom into account. The task is to impose a penalty which accords to the nature and gravity of the subject breach and the personal circumstances of the employee in question.

    [75]cf Wotton (2012) 246 CLR 1 at 16 [31]‑[32] per French CJ, Gummow, Hayne, Crennan and Bell JJ.

46. For similar reasons, the remainder of the respondent's further alternative contention should be rejected.  As has been observed[76], due to the way in which the respondent conducted her case before the Tribunal, the respondent must be taken to have accepted that her conduct in broadcasting the "anonymous" tweets was conduct which failed to uphold the APS Values and the integrity and good reputation of the APS within the meaning of s 13(11), and that, but for the implied freedom, the sanction of dismissal was warranted. It is too late now for the respondent to be permitted to contend for the first time, as it were on ultimate appeal, that the penalty imposed on her did not accord to the nature and gravity of her contraventions of ss 10(1) and 13(11) or her personal circumstances. She must be taken to have accepted that they did and, consequently, that the penalty imposed was in accordance with those provisions and so within the limits set by the implied freedom.

    [76]See [27] above.

    Conclusion

47. It follows that the appeal should be allowed.  The decision of the Tribunal should be set aside.  In its place, the reviewable decision of 1 August 2014 should be affirmed.  The respondent should pay the appellant's costs of the appeal.

48. GAGELER J. This proceeding, styled as an appeal on a question of law from a decision of the Administrative Appeals Tribunal, was commenced in the original jurisdiction of the Federal Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) and was removed into the High Court under s 40 of the Judiciary Act 1903 (Cth). The background is fully described in the reasons for judgment of the plurality.

49. Comcare and Ms Banerji agreed before the Tribunal that the termination of Ms Banerji's employment within the Department of Immigration and Border Protection was "reasonable administrative action taken in a reasonable manner in respect of [her] employment" within the meaning of s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) unless she could establish that the termination fell outside that description "having regard to the implied freedom of political communication"[77]. That agreement meant that the only question raised for the consideration of the Tribunal in reviewing the decision of the Comcare Review Officer, which had affirmed the denial of her claim for compensation under s 14 of that Act for mental injury arising out of her employment, was whether the provisions of ss 10(1)(a), 13(11) and 15(1)(a) and (3) of the Public Service Act 1999 (Cth) ("the PSA") operated to infringe the constitutionally implied freedom of political communication to the extent that those provisions purported to authorise the termination of her employment. The decision of the Tribunal, to set aside the decision under review and to determine instead that Ms Banerji was entitled to compensation, followed from its conclusion that the implied freedom of political communication was so infringed.

    [77]Banerji and Comcare (Compensation) [2018] AATA 892 at [12].

50. The question of constitutional law which now arises for the determination of the High Court is essentially the same as the question which was raised for the consideration of the Tribunal. For reasons to be explained, however, there is no occasion to confine the question to the particular circumstances of the termination of Ms Banerji's employment. Whether ss 10(1)(a), 13(11) and 15(1)(a) and (3) of the PSA operated to infringe the implied freedom of political communication to the extent that those provisions purported to authorise the termination of Ms Banerji's employment can and should be addressed by asking whether those provisions operate to infringe the implied freedom of political communication across the range of their potential operations.

51. Contrary to an argument put on behalf of the Australian Human Rights Commission, which was granted leave to make written submissions as amicus curiae, the proceeding raises no distinct question concerning the application of the implied freedom of political communication to an exercise of executive power.  As Basten JA pointed out in A v Independent Commission Against Corruption[78], "[w]hile it is true that the implied freedom of political communication will limit the scope of executive power, it does so, at least in the case of a [repository] exercising statutory powers, by limiting the scope of legislative power". 

    [78](2014) 88 NSWLR 240 at 256 [56].

52. And contrary to an argument put on behalf of Ms Banerji, the proceeding raises no separate question of administrative law as to whether the implied freedom of political communication was a consideration which needed to be, and was not, taken into account in the making of the administrative decisions which resulted in the termination of her employment.  As Basten JA also pointed out in A v Independent Commission Against Corruption[79], "there is an element of conceptual confusion in the suggestion that the constitutional limit on the scope of a power is a factor which must be taken into account by [an] authority in the course of exercising the power" in that "[t]he reason why the authority does not have the power cannot sensibly be described as a condition of its exercise".

    [79](2014) 88 NSWLR 240 at 256-257 [56].

53. The answer to whether ss 10(1)(a), 13(11) and 15(1)(a) and (3) of the PSA operate to infringe the constitutionally implied freedom of political communication across the range of their potential operations turns on whether the burden which those provisions operate to impose on freedom of political communication is a burden that is justified. The burden is justified if two conditions are satisfied. One is that the object of the impugned provisions, identified in s 3(a) of the PSA, is consistent with the constitutionally prescribed system of representative and responsible government. The other is that the impugned provisions are reasonably appropriate and adapted to achieve that identified object in a manner consistent with that constitutionally prescribed system of government.

54. The impugned provisions, in my opinion, satisfy both conditions. The object identified in s 3(a) of the PSA not only is consistent with the constitutionally prescribed system of representative government but serves positively to promote the constitutionally prescribed system of responsible government. Sections 10(1)(a), 13(11) and 15(1)(a) and (3) are narrowly tailored to achieve that object in a manner which minimally impairs freedom of political communication. The burden which the impugned provisions impose on freedom of political communication is therefore justified.

55. To explain that answer, it is necessary to start with the constitutional context within which the PSA is enacted and operates.

    Constitutional context

56. The PSA is enacted under s 51(xxxvi) of the Constitution as a law with respect to the matter referred to in s 67 as "the appointment and removal of all other officers of the Executive Government of the Commonwealth" and under s 51(xxxix) as a law with respect to "matters incidental to the execution of any power vested by this Constitution in ... the Government of the Commonwealth ... or in any department or officer of the Commonwealth". The "other officers" to whom s 67 refers are officers of the Executive Government of the Commonwealth other than Ministers of State for the Commonwealth, for whom provision is made in s 64. To appreciate the special constitutional position of those other officers, it is necessary first to understand the peculiar constitutional position of Ministers.

57. Section 61 of the Constitution vests the executive power of the Commonwealth in the Queen and makes it exercisable by the Governor-General. Section 62 mandates establishment of a Federal Executive Council to advise the Governor-General, and s 63 provides that references to the Governor-General in the Constitution are to be construed as references to the Governor-General acting on the advice of the Federal Executive Council.

58. Section 64 of the Constitution requires Ministers to be appointed by the Governor-General "to administer such departments of State of the Commonwealth as the Governor-General in Council may establish".  The Ministers so appointed are required by that section to be members of the Federal Executive Council.  They hold office during the pleasure of the Governor-General and they cannot hold office for more than three months unless they become senators or members of the House of Representatives. 

59. Combined with the requirements of s 6 of the Constitution that there must be a session of Parliament at least once in every year and of ss 7, 9, 13, 24, 28 and 32 that senators and members of the House of Representatives be "directly chosen by the people" in elections held at least once every three years, the requirement of s 64 that Ministers be or within three months of appointment become senators or members of the House of Representatives facilitates the political accountability of Ministers to the House of Representatives and to the Senate. Through the House of Representatives and the Senate, Ministers are made politically accountable to electors. The result is "that the actual governmentof the [Commonwealth] is conducted by officers who enjoy the confidence of the people"[80], which is the essence of the system of responsible government for which the Constitution makes provision[81]. 

    [80]Griffith, Notes on Australian Federation:  Its Nature and Probable Effects (1896) at 17, quoted in Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 704.

    [81]Egan v Willis (1998) 195 CLR 424 at 451 [42]; [1998] HCA 71, quoted in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 463-464 [217]; [2001] HCA 51. See also McCloy v New South Wales (2015) 257 CLR 178 at 223-225 [103]-[108]; [2015] HCA 34.

60. The political accountability of Ministers, Mason J observed in FAI Insurances Ltd v Winneke[82], has two elements. Each is facilitated by a different aspect of the operation of s 64 of the Constitution.  One element, corresponding to the requirement of the section that Ministers be members of the Federal Executive Council, is the "collective responsibility" of Ministers to the Parliament and to electors for the whole conduct of the Executive Government of the Commonwealth.  The other element, corresponding to the requirement of the section that Ministers be appointed to administer departments established by the Governor-General on the advice of the Federal Executive Council, is the "individual responsibility of Ministers to Parliament for the administration of their departments".

    [82](1982) 151 CLR 342 at 364; [1982] HCA 26.

61. Enhancing the political accountability of Ministers facilitated by s 64, ss 65 and 66 of the Constitution make provision for the Parliament to have legislative control over the number and salaries of Ministers.

62. Against the background of the provision made in respect of the Federal Executive Council and of Ministers in ss 62 to 66, s 67 of the Constitution provides:

    "Until the Parliament otherwise provides, the appointment and removal of all other officers of the Executive Government of the Commonwealth shall be vested in the Governor-General in Council, unless the appointment is delegated by the Governor-General in Council or by a law of the Commonwealth to some other authority."

    It is the opening words of the section which invoke the power conferred on the Commonwealth Parliament by s 51(xxxvi) of the Constitution to make laws with respect to matters in respect of which the Constitution makes provision until the Parliament otherwise provides. 

63. The other officers of the Executive Government of the Commonwealth referred to in s 67 of the Constitution encompass, although are not limited to, all who might be involved in the exercise of executive power within such departments as the Governor-General in Council might from time to time establish under s 64. The ongoing conferral by s 64 of executive power on the Governor-General in Council to establish departments and the ongoing conferral by s 51(xxxvi) of legislative power with respect to the appointment and removal of officers within departments were supplemented within the scheme of the Constitution by the making of transitional provision for the transfer to the Commonwealth of "departments of the public service in each State" specified in s 69 of the Constitution. The consequence of transfer of such a department was that "all officers of the department" became by force of s 84 of the Constitution "subject to the control of the Executive Government of the Commonwealth" and that the transferred department itself came within the subject matter of the exclusive legislative power conferred on the Commonwealth Parliament by s 52(ii) of the Constitution with respect to "matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth". But officers of transferred departments also met the description of other officers of the Executive Government of the Commonwealth capable of removal under s 67, and they too were therefore within the scope of s 51(xxxvi), subject to certain rights vested in or accruing to them under State law at the time of transfer which were preserved to them by s 84[83].

    [83]Bradshaw v The Commonwealth (1925) 36 CLR 585 at 591, 595, 597-598; [1925] HCA 42; Edwards v The Commonwealth (1935) 54 CLR 313 at 323; [1935] HCA 84.

64. Section 44(iv) of the Constitution renders all of the other officers of the Executive Government of the Commonwealth to whom s 67 of the Constitution refers, to the extent that they are holders of "office[s] of profit under the Crown", incapable of being chosen or of sitting as senators or as members of the House of Representatives.  Officers of the Executive Government of the Commonwealth who are not Ministers are in that way disqualified from taking part in the Parliament to which Ministers are politically accountable.  Their disqualification from participation in the Parliament, as was noted in Sykes v Cleary[84], "contributes to their exclusion from active and public participation in party politics" and, in the result, has "played an important part in the development of the old tradition of a politically neutral public service".  More will be said of the development and continuation of that tradition in due course.

    [84](1992) 176 CLR 77 at 96; [1992] HCA 60. See also Re Lambie (2018) 92 ALJR 285 at 291 [26]; 351 ALR 559 at 566; [2018] HCA 6.

65. The overall constitutional context within which the PSA is enacted and operates is accordingly of: the administrative responsibility of Ministers for departments in which other officers of the Executive Government of the Commonwealth are involved in the exercise of executive power; the political accountability of Ministers for the administration of their departments to the House of Representatives and to the Senate; and the exclusion of those other officers from participation in the House of Representatives and in the Senate. That constitutional context informs the structure of the PSA and permeates its ethos.

    Structure and ethos of the PSA

66. Like its predecessors, the Commonwealth Public Service Act 1902 (Cth) and the Public Service Act 1922 (Cth), the PSA is not "a law having general operation over all the members of the community". It is a law concerned exclusively with "the regulation of what is, no doubt, a very large body of people with respect to their work for and their relations with the Commonwealth", a component of which regulation involves subjecting them to a code of discipline that is enforced administratively[85]. 

    [85]R v White; Ex parte Byrnes (1963) 109 CLR 665 at 670-671; [1963] HCA 58.

67. Again like its predecessors, the PSA "serves public and constitutional purposes as well as those of employment"[86].  Providing as it does for "the marshalling of the human machinery to implement the exercise of executive power constitutionally vested in the Crown"[87] against the background of the inherent political accountability of Ministers for the administration of their departments to the House of Representatives and to the Senate, the PSA imposes on other officers of the Executive Government of the Commonwealth who are engaged as employees for the purposes of those departments "a number of strictures and limitations which go beyond the implied contractual duty that would be owed to an employer by many employees"[88].

    [86]Federal Commissioner of Taxation v Day (2008) 236 CLR 163 at 180-181 [34]; [2008] HCA 53, citing McManus v Scott-Charlton (1996) 70 FCR 16 at 24.

    [87]McManus v Scott-Charlton (1996) 70 FCR 16 at 24.

    [88]Federal Commissioner of Taxation v Day (2008) 236 CLR 163 at 181 [34].

68. For each department that the Governor-General in Council establishes under s 64 of the Constitution, the PSA establishes an office of Secretary of the department[89].  It imposes on the holder of that office responsibility for managing the department and advising the Minister administering the department in matters relating to the department[90]. It also imposes on the holder of that office responsibility for assisting the Minister to fulfil what the PSA acknowledges to be the "Minister's accountability obligations to the Parliament to provide factual information, as required by the Parliament, in relation to the operation and administration of the Department"[91].

    [89]Section 56(1) of the PSA.

    [90]Section 57(1) of the PSA.

    [91]Section 57(2) of the PSA.

69. The PSA mandates that all persons engaged as employees to perform functions in a department must be engaged under the PSA or under the authority of another Act[92].  It empowers the Secretary of a department, on behalf of the Commonwealth, to engage persons as employees for the purpose of the department[93]. Persons so engaged are referred to in the PSA as "APS employees"[94]. Together with Secretaries of departments, APS employees form part of the "Australian Public Service" ("the APS") which the PSA establishes[95].

    [92]Section 6(1) of the PSA.

    [93]Section 22(1) of the PSA.

    [94]Section 7 of the PSA (definition of "APS employee").

    [95]Section 9 of the PSA.

70. The objects of the PSA and the manner in which the PSA regulates the APS continue a long tradition of professionalism and political neutrality of officers within departments of State for the administration of which Ministers of State are constitutionally responsible and politically accountable[96]. The tradition can be traced through the predecessors of the PSA to a process of public sector reform which began in the second half of the nineteenth century following recommendations in the Report on the Organisation of the Civil Service in the United Kingdom[97] for an end to ministerial patronage and for the creation of a permanent professional public service based on competitive recruitment and promotion processes, which were taken up and implemented by legislation after the advent of responsible government in the Australian colonies[98] and which contributed to its development[99].  The ethos which then emerged, and which has prevailed throughout the history of the Commonwealth, has been that of "an apolitical public service which is skilled and efficient in serving the national interest"[100].

    [96]See de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 at 75-76.

    [97]Northcote and Trevelyan, Report on the Organisation of the Permanent Civil Service (1854) at 3, 9, 18-20, 22-23.

    [98]Civil Service Act 1862 (Vic); Civil Service Act 1874 (SA); Civil Service Act 1884 (NSW); Civil Service Act 1889 (Qld); Civil Service Act 1900 (Tas); Public Service Act 1900 (WA).

    [99]See Finn, Law and Government in Colonial Australia (1987) at 61-67, 102-108, 132-137.

    [100]Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 at 164 [55]; [2008] HCA 32.

71. Professor W E Hearn, who had earlier chaired a Board of Inquiry[101] and participated in a Royal Commission[102] the recommendations of which had resulted in the enactment of the first legislation for the establishment and regulation of a permanent civil service in Victoria[103], gave a useful if somewhat idealised account of the emergence of an apolitical public service and of its relationship to ministerial accountability in his treatise entitled The Government of England, published in Melbourne in 1867.  Having stated in relation to Ministers that "[i]t is an essential part of our political system that the heads of the great executive departments, those officers who direct these departments and determine their policy, should be present in Parliament" on the basis that "[t]heir presence there is required to give due effect to the principle of parliamentary control", Professor Hearn made the point that "Parliamentary Government would soon become an intolerable nuisance" in the absence of a permanent civil service[104]. 

    [101]Victoria, Civil Service of the Colony of Victoria, Report of the Board Appointed to Enquire into the Arrangements for the Better Organization of the Civil Service of the Colony (1856).

    [102]Victoria, Civil Service Commission, Report of the Commissioners Appointed to Inquire into and Report upon the Civil Service of the Colony (1859).

    [103]Civil Service Act 1862 (Vic).

    [104]Hearn, The Government of England:  Its Structure and Its Development (1867) at 236-237.

72. Of the officers of the permanent civil service, Professor Hearn wrote[105]:

    "They are the depositaries of official traditions and the custodians of official records.  It is to them that the minister must look for information, and it is to them that he must trust the execution of his designs.  But these gentlemen are the servants of the Queen.  It is their duty and their point of honour to give to their official superior true information, faithful advice, and loyal cooperation.  It matters not to them who that superior may be, or how frequently he may be changed.  Their position is the same.  They are still the Queen's servants, and are bound to do the Queen's business under the orders of any officer that may in that behalf be honoured with Her Majesty's commands.  Whatever may be their personal feelings or their political sympathies, all the servants of the Queen are in their official relations bound, whether individually or in concert with others, to promote to the utmost of their several powers the service to which they belong."

    Professor Hearn continued[106]:  

    "Such is the theory of the Constitution, and it is not contradicted by the practice. ... The Heads of Departments in all their fluctuations never abuse Her Majesty's confidence by advising the dismission of a meritorious officer on the sole ground of his political opinions. The subordinate officers are careful to avoid such an expression of their political feelings as might bring them into collision with any of their chiefs for the time being; and honourably fulfil without respect to persons their duties towards their official superior. So well is the practice now understood that scarcely has a complaint been heard for many years; and the control of the vessel of the State passes from hand to hand, as the exigencies of political affairs require, with perfect ease and with no appreciable inconvenience. The commander may be often changed, and the direction of the good ship may be altered; but the crew remains the same, equally prompt to obey every varying order, and equally skilful to carry it into execution."

    [105]Hearn, The Government of England:  Its Structure and Its Development (1867) at 238.

    [106]Hearn, The Government of England:  Its Structure and Its Development (1867) at 238-239.

73. How maintenance of a culture of political neutrality tends to support maintenance of a permanent professional public service within a system in which Ministers are constitutionally responsible and politically accountable for the administration of their departments was further explained by the Royal Commission on the Civil Service in the United Kingdom in 1915 by reference to how the system might be expected to unravel were restrictions on political activities of public servants withdrawn.  The explanation was as follows[107]:

    "Speaking generally, we think that if restrictions on the political activities of public servants were withdrawn two results would probably follow.  The public might cease to believe, as we think they do now with reason believe, in the impartiality of the permanent Civil Service; and Ministers might cease to feel the well-merited confidence which they possess at present in the loyal and faithful support of their official subordinates; indeed they might be led to scrutinise the utterances or writings of such subordinates, and to select for positions of confidence only those whose sentiments were known to be in political sympathy with their own. 

    If this were so, the system of recruitment by open competition would prove but a frail barrier against Ministerial patronage in all but the earlier years of service; the Civil Service would cease to be in fact an impartial non-political body, capable of loyal service to all Ministers and parties alike; the change would soon affect the public estimation of the Service, and the result would be destructive of what undoubtedly is at present one of the greatest advantages of our administrative system and one of the most honourable traditions of our public life."

    [107]Great Britain, Royal Commission on the Civil Service, Fourth Report of the Commissioners (1914) [Cd 7338] at 97 [11], quoted in Fraser v Public Service Staff Relations Board [1985] 2 SCR 455 at 471.

74. Drawing attention both to the genuineness and to the amorphousness of the continuing ethos of political neutrality amongst officers of the Executive Government of the Commonwealth appointed under the predecessors of the PSA, Professor R N Spann wrote in a paper provided to the Royal Commission on Australian Government Administration in 1974[108]:

    "The permanent head and his subordinates are trained to think of themselves as implementing policies ultimately determined by their political masters, on which they have offered advice, and which may leave much scope for discretion and feedback, but which they should not consciously distort in response to other viewpoints and pressures, including their own personal preferences.

    This doctrine is nowhere fully defined in statutes or regulations, nor could it be effectively enforced by outside sanctions – there are too many subtle ways of hindering, or not fully backing, a policy one dislikes.  It is part of the 'culture', or tradition, of the public service, a tradition whose force should not be under-estimated."

    [108]Australia, Royal Commission on Australian Government Administration, Appendixes to Report (1976), vol 1 at 227 (Appendix 1.I).

75. Giving contemporary expression to that longstanding culture or tradition, s 3(a) of the PSA states as the first of the main objects of the PSA "to establish an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public". The other main objects of the PSA can each be seen to be designed to complement the first. They are expressed as being "to provide a legal framework for the effective and fair employment, management and leadership of APS employees"[109], "to establish rights and obligations of APS employees"[110], and to define the powers, functions and responsibilities of Secretaries (and other "Agency Heads") as well as of the Public Service Commissioner and the Merit Protection Commissioner[111], both of whom are appointed to an independent office under the PSA[112].

    [109]Section 3(b) of the PSA.

    [110]Section 3(d) of the PSA.

    [111]Section 3(c) of the PSA.

    [112]See Pts 5 and 6 of the PSA.

179. The reason for the existence of values of being apolitical, impartial, and professional is to enable a trusted relationship between, on the one hand, the public service and, on the other hand, Parliament, the executive government, which implements its statutes and policies, and the public, who are subject to the administration of those statutes.  One of the main objects of the Public Service Act is "to establish an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public"[240].  This basis for the requirements of being apolitical, impartial and professional is also illustrated by the other APS Values, which at the time included that:  the APS is "openly accountable for its actions, within the framework of Ministerial responsibility to the Government, the Parliament and the Australian public"[241]; in implementing the Government's policies and programs, the APS provides the Government with "frank, honest, comprehensive, accurate and timely advice"[242]; the APS "delivers services fairly, effectively, impartially and courteously to the Australian public and is sensitive to the diversity of the Australian public"[243]; and the APS "is a career-based service to enhance the effectiveness and cohesion of Australia's democratic system of government"[244].

     [240]Public Service Act, s 3(a).

     [241]Public Service Act, s 10(1)(e).

     [242]Public Service Act, s 10(1)(f).

     [243]Public Service Act, s 10(1)(g).

     [244]Public Service Act, s 10(1)(n).

180. The degree to which the behaviour of a public servant should avoid being politicised will also be affected by other APS Values because s 13(11) requires consideration of all values relevant to the public servant's behaviour. The other APS Values include an emphasis on diversity, which is expressed in abstract terms that include recognising diversity of opinions: the APS "recognises and utilises the diversity of the Australian community it serves"[245] and the APS "is sensitive to the diversity of the Australian public"[246].  The APS Values also include values that "the APS provides a fair ... workplace"[247] and that the APS "has the highest ethical standards"[248]. The APS Values of fairness and ethics in the workplace are relevant to the s 13(11) behaviour obligation in relation to public comment by employees because the APS Commission and the Department of Immigration and Citizenship had themselves issued guidelines about such comment. It would, to say the least, strain the insistence upon the highest ethical standards and a fair workplace if a public servant were sanctioned despite complying with APS guidelines.

     [245]Public Service Act, s 10(1)(c).

     [246]Public Service Act, s 10(1)(g).

     [247]Public Service Act, s 10(1)(j).

     [248]Public Service Act, s 10(1)(d).

181. As the Tribunal observed[249], the departmental guidelines and an APS Commission Circular[250] offered guidance to public servants concerning the use of social media.  Both of them contained statements to the effect that public servants can make public comments in a private capacity and the further remark that[251]:

     "[i]t is quite acceptable for APS employees to take part in the political life of their communities.  The APS Values stipulate that the APS is, among other things, 'apolitical, performing its functions in an impartial and professional manner', but this does not mean that APS employees must be apolitical in their private affairs.  Rather, it means that employees should avoid behaving in a way that suggests they cannot act apolitically or impartially in their work."

     [249]Banerji and Comcare (Compensation) [2018] AATA 892 at [36], [37].

     [250]Australian Public Service Commission, Circular 2012/1:  Revisions to the Commission's guidance on making public comment and participating online (social media) (2012).

     [251]See Banerji and Comcare (Compensation) [2018] AATA 892 at [37]; see also at [36].

182. Given this history and context, s 13(11), when read with s 10(1)(a) and the other APS Values, does not impose behavioural obligations that preclude a public servant from making political comment on social media. Rather, they support an interpretation of s 13(11) that creates a boundary, albeit ill-defined, between acceptable expression of political opinions and unacceptable expression of political opinions. Taking into account that a public servant is intended to be able to take part in their political community, that boundary will only be crossed when comments sufficiently imperil the trust between, on the one hand, the APS and, on the other, Parliament, the executive government, or the public. An assessment of when that trust will be sufficiently imperilled will depend upon all the circumstances.

183. Although all circumstances are relevant, there are six factors of particular significance to any assessment of whether the relevant trust is sufficiently imperilled:  (i) the seniority of the public servant within the APS; (ii) whether the comment concerns matters for which the person has direct duties or responsibilities, and how the comment might impact upon those duties or responsibilities; (iii) the location of the content of the communication upon a spectrum that ranges from vitriolic criticism to objective and informative policy discussion; (iv) whether the public servant intended, or could reasonably have foreseen, that the communication would be disseminated broadly; (v) whether the public servant intended, or could reasonably have foreseen, that the communication would be associated with the APS; and (vi) 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.

184. In some cases, all six factors could point strongly towards a breach of s 13(11) by behaviour that imperils the trust protected by that sub‑section, despite the communication being anonymous. An extreme example might be if a senior public servant makes an anonymous tweet to a large number of people where his identity is easily ascertainable and intended to be ascertained, and in the tweet he makes vituperative criticisms of government policy in his department and represents that he and others should aim to frustrate that government policy. This example is sufficient to reject Ms Banerji's submission that, on the proper interpretation of s 13(11), anonymous public communications can never lead to a contravention of s 13(11).

185. However, I do not accept the Attorney-General of the Commonwealth's submission that a public servant's attempt at anonymity could only be relevant, if at all, to determining the appropriate sanction. A hypothetical example, adapted from oral submissions, involving an intended private communication can be used as an analogy to illustrate why intended anonymity is a relevant matter in determining breach of s 13(11). Suppose that a public servant, even an extremely senior public servant such as a Departmental Secretary, expressed vitriolic but cogent criticism of government policy implemented by her department. The criticism is expressed privately to her spouse after work. She might be aware of a reasonable possibility that her spouse might subsequently tweet that criticism. And there might also be a possibility that members of the public would associate the criticism with the Departmental Secretary. But despite these possibilities, it is hardly conceivable that the private communication could have sufficient impact upon the APS Values to amount to a contravention of s 13(11). It is highly unlikely that unintended public repetition of the private comment, even if public repetition were known to be a reasonable possibility, could have a major impact upon any aspects of the trust that underlies the value in s 10(1)(a) concerning the apolitical, impartial and professional nature of the APS.

186. The intended anonymity of a public communication on social media can militate against the impairment of trust in the same way as the intended private nature of the communication, at least where anonymity is intended to avoid attribution to the APS and where the statement does not otherwise impair accountability.  In other words, just as it is relevant that political comment that is later publicly attributed to a public servant was made privately, so too it can be relevant that political comment made in a more public forum was made anonymously so as not to be associated with the public service.  To reiterate though, anonymity is only one factor to be considered in the context of the APS Value in s 10(1)(a).  The substance of the comment might be such as to imperil the relationships of trust even if there is only a remote possibility of it being generally attributed to the public servant or the public service.  A comment might also require assessment of other APS Values such as the sensitivity of the APS "to the diversity of the Australian public"[252].

     [252]Public Service Act, s 10(1)(g).

187. This analysis has concerned the interpretation of s 13(11) in light of the APS Values in s 10(1). However, as explained earlier, no issue arises on this appeal, and it is unnecessary to consider, whether the application of this interpretation to Ms Banerji's anonymous communications could support a conclusion that the decision to terminate her employment was not reasonable administrative action. It suffices to say that such an issue would require a close examination of all of the facts and circumstances. By itself, the fact that Ms Banerji sent more than 9,000 tweets[253] is neutral. It would be necessary to examine closely the content and all the circumstances of those tweets that were said to involve behaviour in breach of s 13(11)[254], singularly or in combination. The primary issue on this appeal is instead whether s 13(11), read with the APS Values including s 10(1)(a), and with s 15, is consistent with the implied freedom of political communication.

     [253]Banerji and Comcare (Compensation) [2018] AATA 892 at [26].

     [254]Some of which were set out by the Tribunal:  Banerji and Comcare (Compensation) [2018] AATA 892 at [9].

     Are ss 13(11) and 15 consistent with the implied freedom of political communication?

188. Having performed the interpretation exercise, which is a pre‑requisite to consideration of constitutional validity[255], it is possible to turn to an analysis of whether ss 13(11) and 15 are consistent with the implied freedom of political communication. That analysis requires consideration of structured proportionality in the manner broadly taken by a majority of this Court in McCloy v New South Wales[256], Brown v Tasmania[257], Unions NSW v New South Wales[258], and Clubb v Edwards[259].  Structured proportionality testing promotes transparent reasoning in the application of an abstract constitutional implication.  It requires the court to confront directly the suitability, reasonable necessity, and adequacy in the balance of laws that impose a burden upon political communication.

     [255]See the authorities referred to in Brown v Tasmania (2017) 261 CLR 328 at 479-480 [485]; [2017] HCA 43. See also Clubb v Edwards (2019) 93 ALJR 448 at 534 [411]; 366 ALR 1 at 106.

     [256](2015) 257 CLR 178 at 194-195 [2]-[3]; [2015] HCA 34.

     [257](2017) 261 CLR 328 at 368-369 [123]-[127], 416-417 [278].

     [258](2019) 93 ALJR 166 at 177 [42], 190 [110]; 363 ALR 1 at 13‑14, 31; [2019] HCA 1.

     [259](2019) 93 ALJR 448 at 462 [5]-[6], 506-507 [266], 544 [462]-[463]; 366 ALR 1 at 10, 70, 120-121.

189. A question that is anterior to the structured proportionality assessment is whether the purpose of ss 13(11) and 15 is legitimate[260].  The Public Service Act is a law in respect of the appointment and removal of all other officers of the executive government and the execution of that power[261].  The general objects of the Public Service Act, set out in s 3, include "to establish an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public"[262].

     [260]See Unions NSW v New South Wales (2019) 93 ALJR 166 at 200 [166]; 363 ALR 1 at 44-45.

     [261]Constitution, s 51(xxxvi) with ss 67 and 51(xxxix).

     [262]Public Service Act, s 3(a).

190. The behavioural obligation in s 13(11), as affected by the APS Values, including s 10(1)(a), and as enforced through s 15(1), has that purpose. Ms Banerji correctly accepted that this is a legitimate purpose. As the Privy Council said in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing[263]:

     "The preservation of the impartiality and neutrality of civil servants has long been recognised in democratic societies as of importance in the preservation of public confidence in the conduct of public affairs ...  Along with these elements of neutrality and impartiality [of the public service] their Lordships would associate an element of loyalty, in particular to the minister whom the civil servant has been appointed to serve.  The importance of these characteristics lies in the necessity of preserving public confidence in the conduct of public affairs.  That is at least one justification for some restraint on the freedom of civil servants to participate in political matters and is properly to be regarded as an important element in the proper performance of their functions."

     [263][1999] 1 AC 69 at 75-76.

191. Contrary to Ms Banerji's submissions, ss 13(11) and 15 do not have the purpose, to use the words of Ms Banerji, of "cleansing APS employees of political opinions" or preventing them from expressing opinions "in ways that do not have a bearing upon the APS as an institution". As Ms Banerji submitted, those purposes would be illegitimate. They would involve a purpose, not merely a consequence or effect of pursuing some other aim, of silencing political communication[264].

     (1) Suitability or rational connection of ss 13(11) and 15

     [264]See Unions NSW v New South Wales (2019) 93 ALJR 166 at 201-203 [173]-[178]; 363 ALR 1 at 46-48.

192. Ms Banerji submitted that ss 13(11) and 15 lacked a rational connection to the legislative purpose of establishing an apolitical public service for a single reason. The reason was that anonymous comment has no connection with a person's status as an APS employee. Ms Banerji submitted that "[s]ingling out APS employees in the conduct of their private lives in this way lacks a rational explanation". One difficulty with this submission is that its focus is not upon rational connection. If the operation of a law purports to further its legitimate purpose by means that are more extreme than would rationally be expected, then this does not break the rational connection between the means adopted by the law and its purpose, although it might support a submission at the next stage that the burden imposed by the law was not reasonably necessary.

193. In any event, a further obstacle to the submission is that, as explained earlier, the proper interpretation of s 13(11) treats the anonymity of a public communication as a relevant factor to consider in the assessment of a public servant's behaviour for compliance with s 13(11).

     (2) Reasonable necessity of the burden

194. The next question is whether there were alternative, reasonably practicable, means that would achieve the same object to the same extent but with a less restrictive effect on freedom of political communication.  This requires consideration of whether another law presented an alternative that could reasonably have been expected, in an "obvious and compelling"[265] sense, to have (i) imposed a significantly lesser burden upon freedom of political communication, and (ii) achieved Parliament's purpose to the same or a similar extent[266].  The extent of the burden upon freedom of political communication can be assessed by reference to the "depth" and "width" of the burden[267].

     [265]McCloy v New South Wales (2015) 257 CLR 178 at 195 [2], 211 [58], 217 [81], 270 [258]; Brown v Tasmania (2017) 261 CLR 328 at 372 [139], 418 [282]; Clubb v Edwards (2019) 93 ALJR 448 at 462 [6], 507 [266]-[268], 510 [277], 548 [478]; 366 ALR 1 at 10, 70-71, 74, 126.

     [266]Clubb v Edwards (2019) 93 ALJR 448 at 548 [479]; 366 ALR 1 at 126.

     [267]Clubb v Edwards (2019) 93 ALJR 448 at 548 [480]; 366 ALR 1 at 126.

195. The burden imposed by ss 13(11) and 15 is deep. Of its very nature, s 13(11) requires consideration of the APS Value of being apolitical and thus targets political communications. The burden is made deeper by the fact that the comments it targets are from the particular class of persons who are "uniquely qualified to comment"[268].  The nature and extent of the punishment or sanction for a breach is also relevant to the depth of the burden[269]. Here, the most serious consequence of a breach of s 13(11) is termination of employment under s 15(1). That sanction is civil, not criminal. And the scheme of s 15(1) is that it should only be imposed for behaviour that involves the most serious breaches of s 13(11). But that should not downplay the depth of the burden imposed by the potential sanction. A person's employment can be fundamental to him or her. The person's entire life might be built around it. The consequences of a loss of employment, particularly as a disciplinary penalty, could be catastrophic.

     [268]San Diego v Roe (2004) 543 US 77 at 80.

     [269]Clubb v Edwards (2019) 93 ALJR 448 at 548 [480]; 366 ALR 1 at 126.

196. The burden imposed by ss 13(11) and 15 is also wide. The provisions burden political communication in the workplace as well as outside the workplace. They apply "at all times" and not merely in the course of APS employment. They affect thousands of people; in oral submissions reference was made to evidence that there are nearly a quarter of a million public servants in the APS. The provisions restrict public communications more than private communications, but the impact upon public communications is potentially very broad. The width is extended by the evaluative nature of the discretion as to (i) findings of breach of s 13(11) and (ii) the penalty to be imposed by the Agency Head as a consequence of the breach. The uncertainty arising from the evaluative nature of those discretions is not the result of vagueness in the meaning of s 13(11) or s 15. Such lack of clarity can be, and must be, resolved by judicial exegesis[270]. Instead, the uncertainty lies in the application of ss 13(11) and 15, as properly interpreted. That application leaves a wide discretion to the Agency Head.

     [270]Brown v Tasmania (2017) 261 CLR 328 at 471 [452]-[453], 486-488 [506]-[508]; compare at 357 [78].

197. Although the burden is deep and wide, it is shallower and narrower than the burden that existed for the better part of a century, being the outright prohibition upon public political comment by public servants. For instance, the second factor in the evaluative consideration discussed above – whether the comment concerns matters for which the person has direct duties or responsibilities and how the comment might impact upon those duties or responsibilities – illustrates that there could be many matters upon which even senior public servants can express political opinions in public. As the Attorney‑General for the State of Western Australia submitted, a health department official might make public comment about the defence department that would not contravene s 13(11) although it might have been a breach if it were a comment about the health department.

198. The breadth of a law's constraint upon freedom of political communication, particularly by a broad evaluative discretion, can be mitigated by mechanisms that permit review of any sanction[271]. It is mitigated in this case by various review mechanisms available to an employee who has been sanctioned under s 15(1) of the Public Service Act. Section 15(3) requires an Agency Head to establish procedures for determining whether an APS employee has committed any breach of the Code in s 13. Those procedures must have due regard for procedural fairness[272] and they may be different for different categories of APS employees[273]. For sanctions other than termination, an employee has a right of internal merits review under s 33 of the Public Service Act[274].  A termination of employment can be reviewed by the Fair Work Commission under the Fair Work Act 2009 (Cth)[275].  If the dismissal meets various conditions, including that it was "harsh, unjust or unreasonable"[276], then reinstatement or compensation can be ordered for that unfair dismissal[277]. Termination could be unjust if the Fair Work Commission determined that the employee had not contravened s 13(11); it could be unreasonable if inferences were drawn by the Agency Head that could not reasonably have been drawn from the material before that person in any review or hearing; and it may be harsh if its personal and economic consequences are disproportionate to the gravity of the misconduct upon which the Agency Head acted[278].

     [271]See Wotton v Queensland (2012) 246 CLR 1 at 16 [32]; [2012] HCA 2.

     [272]Public Service Act, s 15(3)(b).

     [273]Public Service Act, s 15(3)(c).

     [274]See also Public Service Regulations 1999 (Cth), Div 5.3.

     [275]See Public Service Act, s 8(1); Fair Work Act 2009 (Cth), s 394.

     [276]Fair Work Act, s 385(b); see also s 387.

     [277]Fair Work Act, s 390(1).

     [278]Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465; [1995] HCA 24.

199. Despite the depth and breadth of the burden on political communication imposed by ss 13(11) and 15, Ms Banerji pointed only to one alternative law by which she submitted the Commonwealth Parliament might have expected to achieve its legitimate purpose to the same extent but with a lesser effect on the implied freedom of political communication. That law was said to be one that excluded anonymous communication from s 13(11). Ms Banerji thus submitted that the law would be more tailored if it restricted only public communication that identified the speaker as a public servant.

200. The terms in which such a hypothetical law might be expressed are unclear.  This is an early indication that the law is not an obvious and compelling alternative that would impose a significantly lesser burden upon the freedom of political communication.  When would a communication be sufficiently widespread to be "public"?  When would a communication be anonymous?  How many identifying features, short of a name or signature, would disqualify a communication from being anonymous?  Would anonymous communications be carved out only from the APS Value in s 10(1)(a) or from other values as well?

201. More significantly, it is not obvious that a law which excludes anonymous communication, however that law might be expressed, would achieve Parliament's purpose to the same extent as, or a similar extent to, s 13(11). Rather, the natural expectation would be that an exception for anonymous communications, however defined, could substantially undermine Parliament's purpose of an apolitical public service. Political communications by public servants would be permissible, no matter how widespread the audience and no matter how corrosive of the trust underlying the APS as an institution, provided that the public servant is not identified or, on another variant of the law, not easily identifiable.

     (3) Adequacy in the balance

202. The relevant object of the Public Service Act in s 3(a), to establish an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public, is an object of great importance. It is part of the constitutional conception of responsible government. This notion of responsible government is reflected in the provisions of the Constitution creating power for the appointment and removal of civil servants, namely s 51(xxxvi) read with ss 67 and 51(xxxix), which empowered the enactment of the Public Service Act. Those civil servants are responsible to Ministers, whose appointment is provided for in s 64 of the Constitution. Section 44(iv) of the Constitution reflects the importance of these civil servants remaining apolitical by making any person who holds any "office of profit under the Crown" incapable of being chosen or of sitting as a senator or a member of the House of Representatives.  In Sykes v Cleary[279] this incapacity was held to extend to all public servants, namely all those persons who are permanently employed by the executive government.  It extended in that case to Mr Cleary, who held an "office of profit" by reason of being a teacher who, although appointed by an independent statutory tribunal, was a permanent officer "employed by Her Majesty in the teaching service"[280].

     [279](1992) 176 CLR 77 at 95-96; [1992] HCA 60. See also at 108, 130, 132; Re Lambie (2018) 92 ALJR 285 at 302-303 [78]-[79]; 351 ALR 559 at 582; [2018] HCA 6.

     [280]Re Lambie (2018) 92 ALJR 285 at 303 [79]; 351 ALR 559 at 582.

203. The notion of an apolitical public service, which is one foundation of the constitutional scheme of responsible government, had a strong pre-Federation history.  As Sir William Anson observed, the English provisions of the late nineteenth century requiring the disqualification of civil servants from election to the House of Commons were "for the most part imposed to secure the undivided attention of officials to the business of their departments, and the advantage of a permanent civil service unaffected by changes of ministry or by considerations of party politics"[281].  The English view, which developed from the Report on the Organisation of the Permanent Civil Service[282] in 1854, was rapidly adopted in 1856 by a Board in the colony of Victoria, which recommended the establishment of a permanent non-political public service, saying[283]:

     "It will be impossible to prevent confusion and public inconvenience, if the orderly working of the Civil Service is interrupted by frequent Ministerial changes.  We therefore submit to your Excellency the propriety of following the English precedent, and of appointing non‑political and permanent officers to carry into execution the policy which the Ministry of the day may originate."

     The Report on the Organisation of the Permanent Civil Service was the foundation for legislation in the colony of Victoria in 1862 that established a permanent civil service[284].  Regulations made under the Civil Service Act 1862 (Vic)[285] included the progenitor of the regulation made under the Commonwealth Public Service Act 1902 (Cth)[286], which provided that public servants "are expressly forbidden to publicly discuss or in any way promote political movements".  The Victorian progenitor provision, with sanctions including dismissal[287], contained a broad proscription including prohibiting civil servants from taking "any part in political affairs otherwise than by recording their votes for the election of members of parliament"[288].

     [281]Anson, The Law and Custom of the Constitution (1886), pt 1 at 290.  See Re Lambie (2018) 92 ALJR 285 at 300-301 [71]; 351 ALR 559 at 579.

     [282]Northcote and Trevelyan, Report on the Organisation of the Permanent Civil Service (1854).

     [283]Civil Service of the Colony of Victoria, Report of the Board Appointed to Enquire into the Arrangements for the Better Organization of the Civil Service of the Colony (1856) at 13.

     [284]Civil Service Act 1862 (Vic).

     [285]Regulations for the Civil Service of Victoria 1866 (Vic), reg 23 (Victoria Government Gazette, No 2, 8 January 1867 at 38).

     [286]Regulations made under the provisions of the Commonwealth Public Service Act 1902 (Cth), reg 41.

     [287]Regulations for the Civil Service of Victoria 1866 (Vic), reg 32.

     [288]Regulations for the Civil Service of Victoria 1866 (Vic), reg 23.

204. This background is one reason why the Public Service Act is aptly described as serving "public and constitutional purposes as well as those of employment"[289].  As McHugh J said in Mulholland v Australian Electoral Commission[290], "[c]ommunications between the executive government and public servants and the people are as necessary to the effective working of those institutions as communications between the people and their elected representatives".

     [289]Federal Commissioner of Taxation v Day (2008) 236 CLR 163 at 180 [34]; [2008] HCA 53.

     [290](2004) 220 CLR 181 at 219 [94]; [2004] HCA 41.

205. In Australian Capital Television Pty Ltd v The Commonwealth[291], Mason CJ described the "fundamental importance, indeed the essentiality, of freedom of communication, including freedom to criticize government action, in the system of modern representative government".  That may be so, but it is also fundamentally important, and indeed essential, that in a system of modern representative government a parliament has freedom to make laws that implement the policy decisions it makes for the welfare of the governed.  Where a law impairs freedom of political communication in a reasonably necessary manner in pursuit of another legitimate object, the law should only be held unconstitutional if there is such a gross imbalance between, on the one hand, the importance of that legitimate object to the parliament, and, on the other hand, the magnitude of the burden that the law places on the implied freedom of political communication, so as to pose a threat to the integrity of the constitutionally prescribed system of representative and responsible government[292].

     [291](1992) 177 CLR 106 at 140; [1992] HCA 45.

     [292]See Clubb v Edwards (2019) 93 ALJR 448 at 552 [496]-[497]; 366 ALR 1 at 130-131.

206. Section 13(11), in light of the APS Values, including s 10(1)(a), and the sanctions in s 15(1), is far from exhibiting this lack of balance. Although the burden on the implied freedom of political communication is deep and vast, that burden is imposed in the pursuit, by reasonably necessary means, of a purpose of embedded and long-standing constitutional significance, an apolitical public service. The law is not inadequate in its balance.

     The alternative submissions:  disapplication and constraints on executive power

207. Each of Ms Banerji and the Attorney-General of the Commonwealth had submissions alternative to the challenge to constitutional validity of the legislative provisions. Ms Banerji submitted that the executive decision under s 15(1) to terminate her employment was vitiated because the decision maker did not take into account the implied freedom of political communication or because the decision itself contravened the implied freedom of political communication. The Attorney-General of the Commonwealth submitted that if any constitutional invalidity would otherwise arise then s 15(1) should be treated as authorising only an exercise of power consistent with constitutional limits.

208. Ms Banerji's alternative submissions should not be accepted. There is nothing in s 15 from which an implication could be made requiring a decision maker to take into account the implied freedom of political communication as a mandatory relevant consideration when making a decision under that section. If the operation of ss 13(11) and 15 would otherwise contravene the implied freedom of political communication then the implied freedom would not operate as a mandatory relevant consideration for the decision maker. Nor could the implied freedom operate directly upon an executive act to invalidate an executive decision that is authorised by legislation. It is necessary to explain why, contrary to Ms Banerji's submission, the implied freedom operates directly upon the legislation rather than upon the exercise of executive power that has its source in that legislation.

209. The Attorney-General of the Commonwealth submitted that if the generality of the terms of the statutory power in s 15(1) would otherwise permit action that would be contrary to the implied freedom of political communication then, despite the generality of the terms of the legislative provision, and despite an inability to ascribe a meaning to the words of the provision which would proscribe those exercises of power that are beyond constitutional limits, each exercise of executive power could be treated as subject to a statutory requirement that the power be exercised in accordance with constitutional limits. That submission is correct. The constitutional constraint does not operate directly upon the exercise of executive power. It invalidates the executive act only by operating upon the legislation, disapplying the legislative authority for the executive act if the legislation would otherwise trespass against the constitutional limits upon legislative power.

210. This was effectively the approach taken by Brennan J in dissent in Miller v TCN Channel Nine Pty Ltd[293] and by French CJ, Gummow, Hayne, Crennan and Bell JJ in Wotton v Queensland[294].  But it is also much older than that[295] and derives from a statutory mandate[296].  That mandate permits and requires an approach that constrains the manner in which the statute can be applied even if the statutory discretion is "not confined by statutory criteria"[297].

     [293](1986) 161 CLR 556 at 612‑614; [1986] HCA 60. See also Wilcox Mofflin Ltd v New South Wales (1952) 85 CLR 488 at 522; [1952] HCA 17.

     [294](2012) 246 CLR 1 at 14 [23].

     [295]See Newcastle and Hunter River Steamship Co Ltd v Attorney‑General for the Commonwealth (1921) 29 CLR 357; [1921] HCA 31.

     [296]Now contained generally in Acts Interpretation Act 1901 (Cth), s 15A.

     [297]Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 at 613.

211. The disapplication of legislation from part of its sphere of operation in this manner has sometimes been described as "reading down" and sometimes described as "severance".  However, as I explained in Clubb v Edwards[298], neither of these labels is apt.  Although those labels are more familiar, the technique here, as in Wotton v Queensland[299], involves "[n]o question" of severance or reading down of the legislation.  The best description is "disapplication", although the process could be described as part of an exercise of "construction" only if that term is used, in contradistinction to "interpretation"[300], to describe the manner in which the essential meaning of legislation is applied to particular facts.  As the Attorney-General of the Commonwealth observed, this approach of "construction" avoids the "element of conceptual confusion"[301] involved in treating the constitutional limit as a constraint upon executive power when a constitutional limit on power cannot "sensibly be described as a mandatory consideration" for the exercise of executive power[302].

     [298](2019) 93 ALJR 448 at 534-540 [415]-[433]; 366 ALR 1 at 107-114.

     [299](2012) 246 CLR 1 at 14 [23].

     [300]Clubb v Edwards (2019) 93 ALJR 448 at 537 [425]; 366 ALR 1 at 111.

     [301]A v Independent Commission Against Corruption (2014) 88 NSWLR 240 at 257 [56].

     [302]Walker and Hume, "Broadly Framed Powers and the Constitution", in Williams (ed), Key Issues in Public Law (2017) 144 at 157.  Compare Charter of Human Rights and Responsibilities Act 2006 (Vic), s 38(1); Human Rights Act 2004 (ACT), s 40B(1)(b).

     Conclusion

212. Orders should be made as proposed in the joint judgment.