YOUR EMPLOYMENT AS A PUBLIC SERVANT AND THE IMPLIED RIGHT TO POLITICAL COMMUNICATION

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Australia does not have a Bill of Rights or a Constitutional-right to freedom of speech.  However, for some time it has been acknowledged that there is a right to discuss political matters.  That right has now been qualified.

In the recent High Court judgment of Comcare v Banerji[1] the implied right to political communication was restricted for those people who fall under the Australian Public Service’s (APS) Code of Conduct. In Australia, just under two million people work for the APS,[2] and therefore this case may have significant impacts on their working life.

The case involved an employee of the Department of Immigration and Citizenship who utilised social media to make anonymous tweets criticizing the government, the Department that she worked for and her colleagues. The Department became aware of the anonymous tweets and ultimately terminated her employment as they believed that her conduct breached their Code of Conduct. This Code of Conduct refers to the Public Service Act 1999 (Cth) (“the Act”), where the Act makes mention of establishing an “apolitical public service”[3] and values which underpin the work ethic of the APS and ultimately is employees.[4]

The High Court in their decision has confirmed that there is a conflict between voicing political opinions and performing functions for the APS to the extent of the Code of Conduct. As such, it is important to know your rights as an employee of the APS and whether your use of social media or broadcast of political communications could conflict with the Code of Conduct and your employment.

If this article has raised any concerns for you or your organisation please do not hesitate to contact either John Hayward or Jessika Reghenzani on (07) 4046 1124, for advice specific to your circumstances. 

This article has been prepared with the assistance of Ruby Hedrick, law graduate. 


[1] [2019] HCA 23.

[2] ‘6248.0.55.002 -Employment and Earnings, Public Sector, Australia, 2017-18’, Australian Bureau of Statistics (Webpage, 08/11/2018) <https://www.abs.gov.au/ausstats/abs@.nsf/mf/6248.0.55.002/>.

[3] Found at Public Service Act 1999 (Cth) s3a.

[4] Found at Public Service Act 1999 (Cth s10.

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