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Tribunal: Deputy President Gary Humphries and Member DR B Hughson

Comcare refused the applicant’s claim for workers compensation for post-traumatic stress disorder. On 16 April 2018, the Administrative Appeals Tribunal set aside the decision.

The applicant was an employee of the (then) Department of Immigration and Citizenship (the Department) when, in September 2013, her employment was terminated on the basis that she had breached the Australian Public Service (APS) Code of Conduct (the Code). The conduct that the Department claimed breached the Code was the applicant’s use of an anonymous Twitter account to post tweets about the then government, the then Department minister, certain policies of the Department and the Department’s Communications Manager.

It was agreed by the parties that termination of the applicant’s employment contributed significantly to the aggravation of the applicant’s underlying psychological condition (adjustment disorder characterised by depression and anxiety) and that the applicant would not have suffered the ailment if the termination had not occurred. This meant the applicant suffered from an injury for the purposes of the Safety, Rehabilitation and Compensation act 1988 (the Act), which would make Comcare liable to pay compensation for that injury under section 14 of the Act. However, Subsection 5A(1)(c) excludes compensation for injuries suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. The Tribunal had to determine whether the termination of the applicant’s employment could be characterised as reasonable administrative action, which would mean the exclusion applies in this matter and Comcare would not be liable to pay compensation for the injury.

The applicant claimed that the termination was not carried out in a reasonable manner because it was carried out in breach of the implied freedom of political communication as identified by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. The High Court set out two questions to answer when considering whether a law is alleged to infringe on the requirement of freedom of communication imposed by the Constitution. In this matter the relevant law is the Code, which regulates public political communications by APS officers and the Tribunal considered whether this limit was invalid due to the burden of this regulation on the constitutional right to free speech. The Tribunal had to consider the two questions posed by the High Court in Lange and their application to the Code. Firstly, does the Code effectively burden freedom of communication? Secondly, what is the legitimate end that the Code serves and is the Code reasonably appropriate and adapted to serve that purpose?

The Tribunal accepted, as both parties contended, that the Code does in fact burden the freedom of political communication, with Comcare noting that the burden falls on a narrow class of persons and is narrow in its restriction on political communication.

The Tribunal noted that the legitimate end of the Code’s limit on freedom of political communication was the purpose of maintaining an apolitical public service and maintaining public confidence in that service. The Tribunal was satisfied that this was a legitimate purpose.

The core issue in the matter was whether the limit imposed by the Code was reasonably appropriate to serve that purpose. The Tribunal found that the Code seriously impinged the applicant’s implied freedom of political communication. The Tribunal concluded that, in this matter, the Code was only weakly and imperfectly serving the legitimate public interest of maintaining public confidence in the public service and this did not justify the serious burden on the applicant’s constitutional right. The Tribunal concluded that this was only because the applicant’s comments were not open, but anonymous. Anonymous comments by the applicant could not logically cause a reader to question the neutrality or effectiveness of the public service. The Tribunal observed that the applicant would have breached her duty of loyalty and fidelity owed to the Department had her tweets been open comment. In that circumstance, the application of sanctions against her under the Code would have constituted a proportionate and appropriate application of a law competently designed to preserve the apolitical and impartial status of the public service.

The Tribunal concluded that the termination trespassed on the implied freedom of political communication, was thus unlawful, and so could not constitute reasonable administrative action. Therefore, the applicant suffered an injury pursuant to section 14 of the Act. 

Read the full written decision on Austlii.