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Imogen Simmons - 100046046

LAW20012 Assessment Task 1 - Case Analysis

Comcare v Banerji & Brown v Tasmania By Imogen Simmons

INTRODUCTION Unlike other jurisdictions, 1 Australia does not enjoy an express right to free speech. 2 The concept of an ‘implied’ freedoms was first enunciated in the early 1992 decisions of Australian Capital Television Pty Ltd v Commonwealth, 3 (‘ACTV’) and Nationwide News Pty Ltd v Wills. 4 The High Court held that, in order for the constitutional provisions that defined responsible and representative government to operate, 5 it must be implied that there exists a freedom of political communication. 6 Absent such freedom of communication, representative government would fail to achieve its purpose of government of the people through their elected representatives; government would cease to be responsive to the need and wishes of the people, and, in that sense, to be truly representative.7

The freedom is not a personal right, but rather a limitation on the power that the legislative and executive branches may exercise. 8 It is the objective of this paper to examine the application of principles relating to the freedom of political communication. Through analysis and comparison of the facts and judgements in Brown v Tasmania,9 (‘Brown’) and Comcare v Banerji, (‘Banerji’) 10 valuable insight into the function, scope and limitations of the implied freedom can be gained.

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Such as Canada, under ss 1 and 2(b) of the Canadian Charter of Rights and Freedoms or the United States under the First Amendment to the Constitution of the United States. 2 Joshua Forrester, Lorraine Finlay and Augusto Zimmerman, ‘Finding the Streams' True Sources: The Implied Freedom of Political Communication and Executive Power’ (2018) 43(2) University of Western Australia Law Review 188, 193. 3 (No 2) (1992) 177 CLR 106. 4 (1992) 177 CLR 1. 5 Commonwealth Constitution s 7, s 24, and s 128. 6 Tom Campbell and Stephen Crilly, ‘ The Implied Freedom of Political Communication, Twenty Years On’ (2011) 30(1) University of Queensland Law Journal 59, 61. 7 ACTV 139. 8 ACTV 150; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 125, 149, 162; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 560. 9 (2017) 91 ALRJ 1089. 10 (2019) 93 ALRJ 900.

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RELEVANT LEGAL PRINCIPLES Before discussing the cases in detail, it is useful to provide the framework through which issues of implied freedom are assessed by the courts. The Lange Test Lange v Australian Broadcasting Corporation,11 (‘Lange’) established a ‘two-limb’ test for the validity of a law that infringes on the implied freedom. 12 The decision in Coleman v Power, 13 (‘Coleman’) led to the refinement of the formula. The majority in Coleman found that the second limb of the test needed to assess both the purpose of the law as well as the means of achieving said purpose.14 The test was again altered in McCloy v New South Wales, 15 (‘McCloy’). The McCloy adaptation provides a three step approach, to summarise: 1. ‘Does the law effectively burden the freedom in its terms, operation or effect?’16 (If ‘no’ there is no need for further analysis) 2. (The ‘compatibility test’) If ‘yes’ to Q1, are the purpose, and means of achieving the purpose, compatible with the Constitutional provisions relating to representative government? 17 In order to address this question, the court must first inquire as to the purpose of the law as well as the means in which it may be achieved under the law. 18 In reference to the means, this is not necessarily limited to the facts of the case, but may include a collection of ways in which the law will (likely) be applied in pursuit of the purpose.19 3. (The ‘proportionality test’) If ‘yes’ to Q2, is the law appropriate and adapted to advance its legitimate purpose? This question requires the court to consider whether the burden is ‘justifiable’. There are three stages is assessing justifiability: a. Is the law suitable for achieving its intended purpose? b. Is the law necessary or is there an alternative way in which the same purpose could be achieved with a lesser burden? c. Is there an adequate in its balance? In other words, does the importance of the purpose law outweigh the burden it imposes on the freedom?

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(1997) 189 CLR 520. Lange 567: First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.

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(2004) 220 CLR 1. Levy v Victoria (1997) 189 CLR 579, 646; Coleman 51, 78, 82; Hogan v Hinch (2011) 243 CLR 506. 15 (2015) 257 CLR 179. 16 Ibid 194. 17 Ibid. 18 Ibid [66] and [132]. 19 Brown 1110 [90]. 14

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BROWN V TASMANIA Summary of Facts In 2014, the Tasmanian government introduced the Workplaces (Protection from Protesters) Act,20 ('Protesters Act'). The Protesters Act included provisions that, in effect, made it an offence for individuals (and groups) to protest in areas where they know (or ought reasonably to know) that businesses operate, in a manner that is likely to disrupt the business operations. 21 The act gives authority to police to remove and/or arrest individuals from such areas without warrant, and allows for fines to be issued to offending parties. 22 On different occasions, Dr Brown and Ms Hoyt took part in protests against logging in Tasmania’s Lapoinya Forest. Both parties were charged under the Protesters Act. 23 Due to a lack of evidence, the charges were subsequently dropped. Despite this, Dr Brown and Ms Hoyt (‘Brown’) sought to challenge the validity of the Protesters Act in court. 24 Judgement Despite multiple approaches, the majority found that the Protesters Act did, in fact, impose an unacceptable burden on the freedom of political communication. The court accepted submissions that the test be reformulated to allow for compatibility testing of the purpose to occur prior to testing of the means. This means that the test applied in Brown (and subsequent cases) does not consider means in the second question, but only in the third. If the purpose of the law is consistent with upholding the constitutional objective, only then are the means of achieving this purpose considered. It was successfully argued that this is the logical intention of the original Lange test. 25 Q1. Does the law effectively burden the freedom? Tasmania did not attempt to argue that the provisions were not a burden on the freedom and this was accepted by the court. 26 Q2. The compatibility test First it was necessary for the court to determine the purpose of the Protesters Act. The purpose of the act was evident within the provisions, 27 and the political and historical background of environmental

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2014 (Tas). Protesters Act s 6(1)-(5), s 7 and s 11. 22 Ibid s 11(1),(2),(6)-(8), s 13(1)-(4). 23 Dr Brown under s 8(1) (remaining in a business area after police direction to leave) and Ms Hoyt under s 6(4) (contravening a direction within 3 months of a previous contravention).. 24 The defendant did not challenge Brown’s standing in the matter. 25 Attorney-General (Cth), 'Annotated Submissions of the Attorney-General for the Commonwealth (Intervening)', Submission in Brown v Tasmania, H3/2016, 28 March 2017 7 [22]-[26]; Brown v Tasmania (2017) 91 ALRJ 1089, 1112 [104]. 26 Brown v Tasmania (2017) 91 ALRJ 1089, 1110 [89]. 27 Ibid 1111 [99] 21

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protests in Tasmania.28 The aim was to prevent behaviour by protesters that threatened to harm or disrupt business activities.29 It was found that the purpose of the act was not incompatible with the maintenance of a responsible and representative government. 30 Proportionality The application of this third limb of the test was the most contentious. The plurality engaged in proportionality testing. It was first found that the law failed to past the suitability test. The court critiqued provisions relating to ‘business areas’ and police powers, finding that such provisions were focussed only on ending a protest without any reasonable connection to a likelihood (or belief) that the protest would result in disruption. 31 This meant that the provisions effectively operated outside of the purpose of the law. In reference to necessity, it was found that there was not substantial difference between the Protesters Act and other laws.32 Specifcally, several of the provisions related to trespass and other unlawful acts. 33 It was also noted that the Protesters Act was not substantially different from the Forestry Management Act (‘the FMA’). 34 As the law failed on the suitability and necessity, the plurality did not engage in a discussion of adequate balance. Nettle J took an alternate approach, asserting that the provisions passed the threshold for suitability and necessity.35 He contended that there was no apparent alternative that would achieve the same purpose as the Protester’s Act. 36 This said, in his opinion, the law failed in the final stage – adequacy in balance. Nettle J found that there was a gross disparity between the powers the law conveyed to the police, the potential imposition of penalties against protesters (including the 4 day restriction from entering an area) and the purpose of the law. 37 Nettle J contended that the law placed too-greata-focus on the reasonable (but not indubitable) beliefs of police. 38 Dissenting Opinions Edelman and Gordon JJ (with one exception) approached the facts of the case in a different way. 39 In keeping with principles set forth in Mulholland v Australian Electoral Commission, 40 and Levy v

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Ibid 1099 [6]. Ibid 1111[99]-[101]. 30 Ibid 1112 [102]-[104]. 31 Ibid 1116 [135]-[138]. 32 Ibid [138], 1117 [140], [146], 1118 [150]. 33 Ibid [146]. 34 2013 (Tas). 35 Above n 26 1145 [289]. 36 Ibid 1145 [289]. 37 Ibid 1147 [295]-[296]. 38 Ibid [294]. 39 Above n 26 1149 [304], [375]. 40 (2004) 220 CLR 18. 29

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Victoria,41 Edelman held that, because the acts proscribed in the relevant provisions were already unlawful under either the FMA or common law, there was no freedom upon which a burden could be imposed. ‘The Constitution does not create spheres of immunity from unlawful activity.’ 42 Similarly, Gordon J found that the burden could only be seen as the difference in severity of sanctions imposed upon an offender compared with the sanctions of previous laws. By this reasoning, she found that the burden was incremental. 43 The provision Gordon J found to be invalid (section 8(1)) refers to protesters who remain in the area after having been directed by the police to leave. The section states that protesters who return to the area within 4 days of direction to leave are in breach of the law. Gordon J found it an unacceptable ‘blanket exclusion’ that failed to acknowledge the conduct or reason for which the individual might be returning. 44 As Gordon and Edelman JJ took issue with the first limb of the Lange test, they did not engage in commenting on proportionality testing.

COMCARE V BANERJI Summary of Facts In 2006, Ms Banerji (‘Banerji) was employed by the (now) Department of Immigration and Citizenship (‘the Department’). By 2012, Banerji had made more than 9000 tweets, many of which were critical of the Department, its policies, administration, management and staff, as well as tweets commenting on the Government, the Opposition, politicians, immigration laws, policies and current events.45 Upon receiving complaints regarding Banerji’s Twitter activity, the Workplace Relations and Conduct Section (‘the WRCS’) of the Department launched investigations into her conduct in 2012. Ultimately, it found that Banerji’s actions had breached several provisions of the Australian Public Service Code of Conduct (the Code) 46 and the sanction recommended for the breach was termination of employment. Banerji sought injunctive relief in the Federal Circuit Court but was denied. 47 In 2013, she was issued a letter of termination by the Department. Following this, Banerji lodged a review with Comcare, claiming compensation for injury caused by the termination. 48 Comcare denied the application and Banerji appealed to the Administrative Appeals Tribunal (‘the AAT’). 41

(1997) 189 CLR 579. Above n 2561192, Edelman J at [558]. 43 Ibid 1167 [411], [413]. 44 Ibid 1149 [310]. 45 Banerji 906 [2]. 46 As per the Public Service Act 1999 (Cth). 47 Above n 45 907 [6]. 48 Ibid 908. 42

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The AAT found in favour of Banerji and set aside Comcare’s decision finding ‘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’. 49 The decision was appealed to the High Court.

Judgement The High Court held that the AAT had erred significantly in its application of relevant principles. 50 The AAT took the erroneous approach that the freedom was a personal right and not a limitation on legislative power.51 Q1. Does the law effectively burden the freedom? Comcare acknowledged that the Code constituted a burden and this concession was approved by the court. 52 Q2. Consistency test The purpose of the Code was, at this point relevant. The majority held that the purpose of the Code was to ‘maintain an apolitical and professional public service’, 53 as per its stated objectives. 54 This purpose is not inconsistent with the constitutional imperitive of maintaining a responsible and representative government.55 Gageler and Gordon JJ contended that, not only is this purpose in keeping with the constitution, it positively promotes it. 56 Q3. Proportionality test The majority held that there was a strong and rational connection between the purpose of the law and the constitutional requirement for responsible and representative government. 57 The government and the public must have confidence in the public service’s ability to perform their duties, regardless of the individual opinions and beliefs of the employees. 58 Banerji put forth an argument that the law should fail on the basis of necessity because it did not allow for opinions to be voiced anonymous; this notion was rejected. 59 The court held that anonymous opinions still posed a threat to the reputation and standing of the public service and are at constant risk of failing to remain anonymous. 60

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Banerji v Comcare (Compensation) [2018] AATA 892 [120]. Above n 45 909 [19]-[20], 931 [135], 936 [164]. 51 As per Brown v Tasmania (2017) 91 ALJR 1089; Wotton v Queensland (2012) 246 CLR 1; Lange. 52Above n 45 912 [29]. 53 Ibid [30]-[31]. 54 PSA s 3. 55 Above n 45 912 [29-31] 56 Ibid 917 [54], 924 [95], 925 [100]- [111], 934 [156]. 57 Ibid 913 [34]. 58 Ibid. 59 Ibid [35]-[36]. 60 Ibid [36]-[37]. 50

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Having passed the previous tests, the court was required to address the adequacy of balance. 61 In the given situation, this required weighing the burden on the freedom against the importance of the law’s purpose. The court held that the balance was not inadequate or unacceptable for the following reasons: First, the importance of the purpose can not be diminished. The need for confidence in the public service is fundamental to the operation of government as per the Constitution. 62 Second, the law applies only to employees of during the term of their employment and not the public at large. 63 Third, a breach of the Code (under s 10 or 13) is not self-executing. 64 Upon a breach, the decisionmaker had (under s 15) a range of sanctions that could be applied dependent on the severity of the breach; the most severe of which was termination. If a sanction was unreasonably applied, this too is considered a breach. Should the employee take issue with the sanction, there are multiple avenues of review available to them (internal, merit, administrative etc.). 65

CASES COMPARISON AND ANALYSIS The rulings in the cases highlight key differences; however these are differences in fact, not in application of law. Prima facie, the cases have similar fact scenarios – both involve parties who’s political communication has been infringed upon by statute. 66 Both cases employ the Lange test, as refined in McCloy. Both cases comment on the key differences between the Australian and US approach to freedom of speech. 67 In response to the first question of the test – whether a burden existed – neither Tasmania nor Comcare attempted to assert that no such burden existed. In relation to the consistency test, the court found the purpose of both laws were not inconsistent with the responsible and representative government provisions of the Constitution. It is only at this point in analysis do the differences between the two fact scenarios become apparent. In Brown, the court took issue with the necessity and suitability elements of the Lange test. The language of the act was too ‘vague’ and broad-sweeping to meet the requirements of necessity and

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Ibid 914 [38]. Ibid 912 [29]-[31]. 63 Ibid 926 [103]. 64 Ibid 924 [94], 932 [138], 935 [158]. 65 Ibid 926 [106], 927 [111], 932 [138], 935 [157]-[159], 945 [208]. 66 Ibid 925 [97]. 67 Banerji 936 [164]; Brown 1145 [288]. 62

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suitability.68 There were valid arguments that pre-existing laws provided suitable alternatives to the Protesters Act and that the manner in which it sought to achieve its purpose was overly punitive and resultingly ineffective. Though the majority of the court refrained from engaging in the adequacy of balance discussion (as it was not necessary) Nettle J took issue with the disproportionate effect of the law, the broad police power and the threat to the freedom. In Banerji, the court was far more willing to enter into discussions of proportionality. 69 In doing so, they (largely) followed the Brown approach to the tests. 70 The court highlighted the importance of the law’s purpose and its fundamental connection to maintaining a representative and responsible government. This importance leant weight to arguments of necessity. The court failed to identify a more appropriate or effective method of achieving the purpose and, as such, the test for suitability was satisfied. Finally, the court discussed, in some detail, the adequacy of balance. Unlike the Protester’s Act, the Code did not apply to the public in general, nor did it apply specifically or discriminatorily to any group united by a belief, opinion etc – it only related to current employees. The importance of the purpose, combined with the overall ‘reasonableness’ of the provisions, supported the conclusion that the balance was acceptable. Perhaps the most important point to raise during a comparison of these cases is the relationship between the outcome of the judgement and the purpose of the law. In Brown, the purpose of the impugned law was to protect the lawful operations of business, in Banerji the purpose of the law was to protect the sanctity of the relationship between government and the public service. It cannot be denied that the latter is of greater significance (in this context). For further comparison, consider the purpose of the law in Levy. 71 On its face, the facts are very similar to Brown – the relevant law restricted protesters access to duck hunting areas, however the purpose was public safety. In Levy, as in Banerji, the court found that, while a burden existed, it was outweighed by the necessity and importance of the pursuing the purpose. The elevation of the law’s purpose above the ‘rights’ of the individual, has not gone uncriticised. 72 Though relatively recent, the Banerji decision has already come under scrutiny. ‘While the d...