Public Servants and the Implied Freedom of Political Communication

Date01 March 2021
AuthorAnthony Davidson Gray
DOI10.1177/0067205X20973477
Publication Date01 March 2021
SubjectIn Focus: The Implied Freedom of Political Communication
FLR973477 3..39 In Focus: The Implied Freedom of Political Communication
Federal Law Review
2021, Vol. 49(1) 3–39
Public Servants and the Implied
ª The Author(s) 2021
Article reuse guidelines:
Freedom of Political
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DOI: 10.1177/0067205X20973477
Communication
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Anthony Davidson Gray*
Abstract
The High Court of Australia recently overturned a tribunal decision in favour of a public servant who
was dismissed after sending tweets critical of various politicians and government policies. All
members of the Court found the relevant provisions were valid and did not infringe the implied
freedom of political communication. This article first discusses development of freedom of speech at
common law, through development in ideas about governance from a Hobbesian tradition to a
Lockean model of representative government. Notions of representative government underpinned
earlier High Court decisions on freedom of political communication, reflecting values such as the
sovereignty of the people, accountability and informed decisions at election time. The article then
considers restrictions on the ability of public servants to contribute to public debate in that light.
Scholars and courts elsewhere have recognised the important contribution public servants can make
to representative democracy. The recent decision pays insufficient interest to such contributions
and is too willing to accept government arguments as to the need to suppress opinion by public
servants in the name of an apolitical and independent public service, without considering counter
arguments in terms of democracy, and without sufficient evidence of actual or likely interference
with government functions. The proportionality analysis undertaken by the court was inadequate in
its failure to do so. Whilst the freedom of communication of public servants is not absolute,
restrictions must be narrowly confined and fully justified. Neither test was satisfied in this case.
I Introduction
(T)he scrutinised, as a class, always want to do their work on their own terms. Their lives are much
easier if they never have to explain why taxpayer money gets wasted, they want to spy on citizens, or
people are locked up without cause. Ignorance has never been a solid basis for citizenship or a method
to get the best out of elected governments.1
1. ‘Those Who Control Flow of Information Not Above Law’, The Australian, 22 October 2019, 13 (editorial) (Sydney,
Australia).
* University of Southern Queensland, Queensland, Australia. The author may be contacted at anthony.gray@usq.edu.au.

4
Federal Law Review 49(1)
In a recent decision,2 the High Court of Australia unanimously overturned a decision of a tribunal
that had found in favour of a federal public servant in a compensation case. The public servant had
been dismissed after sending numerous tweets critical of various officers in political life, including
ministers and members of the opposition. The public servant had argued that the Code of Conduct
under which she was dismissed was in conflict with the implied freedom of political communi-
cation, which had been recognised by the High Court since 1992, and that the restrictions on the
speech of public servants were not proportional to the objectives that the measures sought to
achieve. Her arguments failed. While most members of the High Court agreed that the Code of
Conduct provisions curtailed the implied freedom of political communication, all found that the
measures were justified, proportional responses in pursuit of a legitimate objective, compatible
with our system of representative and responsible government.
This article will take issue with the High Court’s decision in this case. Part II will briefly explain
the development of the law relating to free speech in the common law. In the past, English law gave
limited protection to free speech, favouring strong powers for those in power to stifle and silence
dissent and criticism. As confidence in the stability of government grew, the courts grew more
confident in protecting free speech. In essence, the law morphed from a Hobbesian view of
government to a Lockean view of government, emphasising democratic self-government, and
those in Parliament as representatives of the people. On the other hand, governments regularly
find public criticism of their activities and policies annoying, and there is a long tradition of
punishment and attempted deterrence of criticism that, whilst more subtle than earlier times,
continues to be in evidence. Part II will also explain development of the High Court jurisprudence
on the freedom of political communication, with particular emphasis to those aspects of the
judgments considered most pertinent to the current context of the speech of public servants.
Part III will consider other contexts in which the value of the importance of public servants’
speech to democracy has been recognised. This includes leading scholars such as Finn, Stiglitz and
Sunstein. The views of Finn are particularly interesting, with his background as a leading public
law scholar who was appointed to the bench, and had some opportunity to implement his views in
one of the (few) decisions on the constitutional freedom of a public servant to air grievances. It also
includes a discussion of the jurisprudence of other countries, in particular Canada, where the
importance of the speech of public servants to a vibrant democracy has been recognised. Whilst
these courts have recognised the legitimate interest of a government in terms of loyalty and
objectivity of public servants, they have typically tightly constrained the ability of a government
to effectively stop a public servant from speaking out about public affairs.
Part IV then considers the High Court’s recent Banerji decision concerning the freedom of a
public servant to engage in social media discussion about political figures and government policy.
It contains criticism of the High Court decision, including the lack of express recognition of the
important role that public servants might play in political discussions, and the lack of evidence that
the public servant’s personal opinions might realistically, or in fact did, preclude her ability to do
the work for which she had responsibility. The recent decision also continues a line of argument
featured in other case law, where the courts seem to be accepting that the tone of a communication
can be relevant to a decision about its constitutionality. Respectful disagreement will be expressed
2. Comcare v Banerji [2019] HCA 23 (‘Banerji’); Kieran Pender, ‘A Powerful Chill: Comcare v Banerji and the Political
Expression of Public Servants’ on AUSPUBLAW (28 August 2019), https://auspublaw.org/2019/08/“a-powerful-chill”?-
comcare-v-banerji-[2019]-hca-23/


Gray
5
with this developing line of reasoning. Finally, the article will briefly consider other contexts in
which the law protects the freedom of individuals to express their political views, including non-
discrimination laws. Coherence in the law is also considered to be important. Possible incoherence
arises when the law, on the one hand, recognises the important role whistleblowers, including
public servants, can play in bringing alleged wrongdoing to the attention of the public and improv-
ing accountability of those in government, and by generally making it unlawful to discriminate
against a person on the basis of their political views or activity, but then, on the other, effectively
countenancing dismissal of a public servant who publicly expressed her genuinely held views.
II Background to Freedom of Speech, Political Communication
and Representative Government

A History, Hobbes v Locke and Current Debates
Paradoxically, the freedom of an individual to speech has often been under threat in jurisdictions
that would regard themselves as democracies, literally government by and of the people. From
earliest Greek times, not all were permitted to participate in the discussions and decisions that a
community held and made. In the Middle Ages, it was a serious offence to ‘imagine’ the death of
the monarch, and laws relating to sedition and treason operated to temper and deter criticism of
those in power.3 A system of prior restraint was in effect until 1694, pursuant to which only
material that had been approved by those in power could be made public. Governments have long
viewed with antipathy those who wish to criticise them publicly and often tried to discourage and
deter such behaviour. They have often sought to control the release of information that might be
considered unfavourable to them.
In the scheme of things, Australia has a reasonably strong record of embracing ‘democracy’.
Whilst it was not a feature of early colonial life, by the end of the 19th century Australia’s
democratic institutions were well established.4 The Australian Constitution reflects strong princi-
ples of democratic government,5 with numerous provisions concerned with Australia’s structure of
government, and assurances of the involvement of individuals in choosing who is to sit in Parlia-
ment, and ultimate sovereignty residing in the people. The founding fathers were aware of the
United States and United Kingdom models of constitutional government. They readily embraced
the kind of representative government model that features in the United States Constitution of
1789, including by using phrases from that document in key Australian Constitution provisions
concerning voting, including ss 7 and 24.6 Democracy and representative...

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