Comcare v Banerji [2019] HCATrans 50 (20 March 2019)

Last Updated: 20 March 2019

[2019] HCATrans 050

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C12 of 2018

B e t w e e n -

COMCARE

Appellant

and

MICHAELA BANERJI

Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 20 MARCH 2019, AT 10.03 AM

Copyright in the High Court of Australia

MS B.J. TRONSON: May it please the Court, I appear for the appellant. (instructed by Australian Government Solicitor)

MR R. MERKEL, QC: If the Court pleases, I appear with my learned friends, MS C.G. WINNETT and MR C.J. TRAN, for the respondent. (instructed by Lander & Co)

MR S.P. DONAGHUE, QC, Solicitor–General of the Commonwealth of Australia: If the Court pleases, I appear with MR C.L. LENEHAN and MS J.D. WATSON, for the Commonwealth AttorneyGeneral, intervening. (instructed by the Australian Government Solicitor)

MR M.G. SEXTON, SC, Solicitor–General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MS F.I. GORDON, for the AttorneyGeneral for New South Wales who intervenes in the proceedings. (instructed by Crown Solicitor’s Office (NSW))

MR C.D. BLEBY, SC, SolicitorGeneral for the State of South Australia: May it please the Court, I appear with my learned friend, MS L. GAVRANICH, for the AttorneyGeneral of South Australia, intervening. (instructed by Crown Solicitor’s Office (SA))

MR J.A. THOMSON, SC, SolicitorGeneral for the State of Western Australia: May it please the Court, with MR N.T.L. JOHN I appear on behalf of the AttorneyGeneral for Western Australia, intervening. (instructed by SolicitorGeneral’s Chambers)

KIEFEL CJ: The Court will receive the submissions of the Commonwealth and the respondent in relation to the notice of contention and hear further argument on whether arguments should be allowed in accordance with the notice of contention.

MR MERKEL: If the Court pleases. The argument in the notice of contention is set out, we would say accurately, in paragraph 3 of our proposed written submissions. Sorry, there is one matter I omitted to mention before I start, your Honours. In the respondent’s book of further materials in respect of this issue, a deed was inadvertently included in the material at pages 79 to 86. With the consent of Comcare and the respondent, could we ask that that be removed and not regarded as part of the material?

KIEFEL CJ: Is it confidential material?

MR MERKEL: Yes, it is, your Honour.

KIEFEL CJ: Yes, very well.

MR MERKEL: Thank you, your Honours. At paragraph 3 of our supplementary submission we have set out two main points of the argument that was put on the notice of contention. The first is that section 13(11) of the Act could not apply to the respondent in respect of her conduct because it should be interpreted consistently with the principle of legality and the need to avoid incompatibility with the implied freedom of political communication so as not to extend to anonymous communications the immediate context of which evidence no connection the Australian Public Service. Those submissions are summarised and set out in our written submissions at paragraph 17 to 18, 39 to 41 and 46.

We ask your Honours to note that in the Commonwealth supplementary submissions at paragraph 2 they accept the argument at paragraphs 40 to 41 of the respondent’s submissions is not new. Can I ask your Honours to note that those two paragraphs are preceded by paragraph 39 which is to the effect that the construction that we are contending for is required by the two interpretive principles so that the construction we are contending for by reason of the two interpretive principles is accepted by the Commonwealth as not raising a new matter.

The second aspect of the argument is that the respondent’s termination was inconsistent with the implied freedom with which, as a matter of construction, any exercise of power under section 15 of the Act must comply and we have set out the more detailed argument in respect of that aspect at paragraphs 42 to 45 and 48 to 50 of the respondent’s submissions.

The argument has two components. The first is that, as a matter of construction, the impugned provisions require a nexus which cannot be established by anonymous communications – and I should say that was a central issue before the Tribunal and the central issue on the appeal today.

KIEFEL CJ: I am not sure that is right. Anonymity was certainly a matter that was discussed and dealt with by the Tribunal insofar as it related to the implied freedom. But the issue, and the only issue, according to the references in the determination of the Administrative Appeals Tribunal before it was whether or not how the implied freedom affects the validity of the statutory provisions relied upon in relation to all conduct. That was the issue.

And what is being put against you now is that the notice of contention – although, itself, framed not terribly clearly – when you came to make your argument in relation to this matter, which was referred in from the Federal Court, raises another issue which involves questions of fact relating to the connection between the conduct of the respondent and the public service and that this affects how the Commonwealth – or Comcare – would have run its case before the AAT. It is tolerably clear at least speaking for myself, Mr Merkel – it is tolerably clear how the matter was raised and run before the Tribunal from the Tribunal’s recitation of the arguments before it and the determination it made.

MR MERKEL: Your Honour, we would hope to explain to your Honour that there were two issues before the Tribunal – I will need to come to that. The first related to the validity of the decision, which was raised as a question of construction, and the second was that, if the decision was valid in the sense that the facts found that there was a breach by the respondent, then in that operation we say the provision is invalid.

GORDON J: How does that sit with paragraph 12 on application on the appeal book page 8?

MR MERKEL: The answer to that is that is only one part of the issue as stated. I will take your Honour to the material, which is also set out in the agreed facts, which raised a question of invalidity. I will take your Honours to it but, when your Honours see how the matter was conducted, the matter was conducted at both levels: the validity of the decision and the validity of the section. But I need to take your Honours to the material to show you how we get to that point.

KEANE J: Mr Merkel, what about page 11, paragraph 38.1:

the only issue before the Administrative Appeals Tribunal is:

38.1 whether or not the termination of the applicant’s employment . . . falls outside the exclusion in s 5A(1) of the Act, having regard to the implied freedom –

MR MERKEL: That is correct, your Honour, but as I hope to demonstrate, having regard to the implied freedom was having regard to it as an interpretive principle in respect of the section, and having regard to it as a constitutional principle that can invalidate the section, depending upon its proper construction.

But I do need to take your Honours through the material, because the conduct of the case in this matter is all in writing. So what actually happened was that the parties agreed on a statement of facts with an addendum, which I will take your Honours to, which is not set out in the Tribunal’s reasons, the applicant’s case was put in writing in submissions. The respondent’s case was a written submission in response, and there was a reply.

The only issue raised on the evidence was whether the respondent had sent any tweets from her workplace, and that was the only issue that was contested. So the answer to all of your Honour’s queries about the conduct of the case is to be found in the submissions. And I hope to demonstrate, your Honours, that in fact the way the Tribunal dealt with the matter is it did deal with it at both levels, the validity of the decision in terms of whether the facts fell within it properly construed, and also the validity of the section

KIEFEL CJ: Mr Merkel, could I take you before you take us to the material, the submissions of the parties, could I take you to paragraph 41 in the AAT decision where the argument for the respondent, for Ms Banerji, is put in these terms:

The Code of Conduct cannot and does not reach the kind of political comment made, in the manner in which it was made, by the Applicant, and accordingly the exercise of the disciplinary power under the Code was inconsistent with the constitutional restraint on burdening the freedom of political communication and is therefore ultra vires.

Do you disagree with that as a correct statement of the respondent’s position before the AAT?

MR MERKEL: It was not a complete statement of the respondent’s position, which can only be found in the written submissions, which I need to take your Honours to, because essentially what is being said here is that we have departed from the conduct of the case. And what I would seek to demonstrate, to show your Honour, is that the submissions are within the four walls of the conduct of the case.

KIEFEL CJ: Just so I understand where we are heading, do you say that the Tribunal dealt with the argument that you are now seeking to say was put because if you do, you would need to take us to where the Tribunal did it. If you say that the Tribunal did not do it, then that is of course a matter which should have been raised in the Federal Court proceedings.

MR MERKEL: Yes. Your Honour, I will do that. But at the end of the Tribunal’s decision, the Tribunal dealt with the question of construction, and said it could not be read down, apart from its literal meaning, but did not have to decide the reading down point, because in a phrase at the end said that the decision trespassed upon the implied freedom.

KIEFEL CJ: That was the alternative approach in Wotton it was dealing with. It is not dealing with the point that you are arguing now.

MR MERKEL: Your Honour, it is correct to say that it did not deal with the construction point, in the sense that it decided that the section was so wide in its terms, it would cover any conduct and formed a view about the interpretation which is different from what the Commonwealth is putting, and different to what we are putting, which was a narrower view. But it is because it did not decide that question, which we say was before it, that led to us filing the notice of contention.

KIEFEL CJ: Well, this is a point that should have been taken in the Federal Court before the matter was removed into this Court.

MR MERKEL: Your Honour, when we had the removal

KIEFEL CJ: If that was really the case.

MR MERKEL: When the matter came on before his Honour Justice Keane, we asked for leave, which was granted, to file a notice of contention. The first time, I think I am accurate in saying, that we heard there was an issue about the notice of contention was when the Commonwealth put its reply submissions in, but what we

KIEFEL CJ: Just to step back to where we were in relation to the AAT decision though. So I am clear, are you saying that the AAT determined are you able to point anywhere in its determination, to where the question of the extent of the operation of the legislation and whether or not there was this nexus between the conduct and the parameters of the statute is addressed by the AAT?

MR MERKEL: Your Honour, at pages 63 to 64

KIEFEL CJ: Pages or paragraphs?

MR MERKEL: Sorry, pages of the core appeal book. It starts at paragraphs 124 onwards. But can I make it clear, your Honour

KIEFEL CJ: That is the alternative Wotton argument.

MR MERKEL: Your Honour might be elevating what occurred at the AAT to a level that is not warranted, because the decision in the end was based neither on the construction of the section or invalidity.

EDELMAN J: Your point, Mr Merkel, is essentially that there was an anterior issue of construction that the case could have been resolved entirely upon before one even considered the constitutional issue of the implied freedom. But if that is right, and if that is the way the case was run, why was there no opposition to removal? Surely the first response to an application for removal should be – would have been that, no this is a simple case of where the best issue is going to be construction and where we say the case could rise and fall upon a shorter point of construction.

MR MERKEL: Two responses, your Honour. The removal was as of right and so, therefore, there was no basis upon which we could oppose it. But the second answer is that both the interpretive exercise and the validity of the Act exercise the interpretive exercise in respect of the proper construction and the validity of the Act both raised questions of constitutional law about how the implied freedom is to act as an interpretive principle as well as whether, on the construction of whatever the answer is, whether the section is valid. But I still need to go back to the conduct of the case because essentially what is put here against us

KIEFEL CJ: Yes. Well, take us to the submissions, Mr Merkel.

MR MERKEL: Thank you, your Honour. Can I just indicate, your Honours – I will not take your Honours there, but the second part of our argument, which is that the nexus required between the conduct and the operation of the section, we say it cannot be established by anonymous communications and, we say on the findings made by the AAT, the respondent’s conduct lacked the requisite nexus such that the provisions cannot be held to apply to her case.

Can I just ask your Honours to note at pages 53 to 54 of the core appeal book at paragraphs 92, 93 and 94 and at pages 60 to 61 at paragraphs 114 to 116, the Tribunal made unequivocal findings on the material before it that support that factual argument.

KEANE J: They said those things after paragraph 113, where they said:

On balance, we consider that Ms Banerji 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 –

response, et cetera. The point is, then, their Honours – the Tribunal then goes on to say that because the comments were anonymous, the implied freedom is engaged, at least to some extent. But, there is no question that they have concluded – not surprisingly given the way the matter was run – that, absent the implied freedom, there was a breach of a duty of loyalty and fidelity.

MR MERKEL: Your Honour, with respect, anonymity was central to whether there was a breach. And, at 116, the Tribunal made findings, which I will come to again, by relating them to the way the case was conducted.

KEANE J: But, all this – 114 to 119 is all about leading up to the conclusion that the implied freedom had been unduly trespassed upon.

MR MERKEL: Your Honour, that is by the section, but that conclusion can go as much to the question of construction – which is the anterior question because until the section is properly construed, one cannot get to whether it is invalid or not. What the Tribunal did is found that this case trespassed on the implied freedom, formed a view of the section, which was its literal meaning, which the Commonwealth is not contending for here – the Commonwealth is putting a nexus requirement which was not an argument put in the written submissions but I will come to that in a moment – and then, at the end, found because on the literal meaning it covered all communications, whether open or anonymous, there was a trespass on the implied freedom but never actually resolved what the construction question ultimately was.

But, for our part, it is not the Tribunal’s reasons that are determinative of whether we are entitled to make the argument that we are putting here, it is the argument that is put against us is it is inconsistent with the conduct of the case. I do need to take your Honours to how the case was conducted because there are written submission, and no oral submissions, so the answer to whether the objection that is being put by our learned friends is a good one is to be found in those submissions because that records the conduct of the case. But, before doing so, can I take your Honours to the further matters at pages 1 to 5.

GORDON J: What page is that, Mr Merkel?

MR MERKEL: Pages 1 to 5 in the book of further materials, your Honour. Can I ask your Honours to note at page 5, there is the applicant’s addendum to the agreed facts which does not appear in the Tribunal’s decision?

KIEFEL CJ: I am sorry, did you say page 5?

MR MERKEL: Of the further materials, your Honour.

NETTLE J: The respondent’s further materials?

MR MERKEL: Sorry, the respondent’s further materials, yes, your Honour.

KIEFEL CJ: Page 5 is the transcript of proceedings.

MR MERKEL: No, sorry, this is in the original book of further materials, your Honour. Sorry, it is Comcare’s book of further material filed on 7 November which contains all the material that was before the AAT. Page 5, after it sets out the agreed issue, which is recorded

KIEFEL CJ: Yes, that is what the Tribunal records.

MR MERKEL: Yes, although it does not record what is set out in the last paragraph, your Honour. I just want to take your Honours briefly to it, where it says:

In particular, the applicant agrees that if the termination was not invalid having regard to the implied freedom of political communication the termination which caused her injury was reasonable administrative action –

What I will endeavour to show your Honours is that

KIEFEL CJ: That assumes that the legislation applies, does it not? Does it not proceed upon that assumption?

MR MERKEL: No, your Honour, if the termination was invalid, the termination is invalid raised in the written submissions, invalid on either ground because it was not – did not fall within the section properly construed or if properly construed it fell within the section, the section was invalid. So, the termination being invalid potentially raised both grounds and both grounds were argued.

KIEFEL CJ: Is that not tantamount – is not the applicant before the Tribunal saying that she agrees that her termination was reasonable action under section 5A(1) unless she can establish that the implied freedom was breached? That would be consistent with what the Tribunal records at paragraph 12 which you were taken to.

MR MERKEL: We say, with respect, that is not the way the case was put to the AAT, your Honour. The case was put to the AAT at both levels and invalidity of the decision raises both issues. It was invalid if made under the Act and the Act did not apply to her conduct.

KIEFEL CJ: Do you agree that invalidity, having regard to the implied freedom, necessarily requires the matters referred to in Lange and McCloy to be applied to the legislation to determine whether the legislation is invalid and, if it is, the termination then falls away because it follows that it too has no statutory force?

MR MERKEL: I do accept that, your Honour, but I ask your Honours to note that the words “having regard to” are ambiguous because it is not whether the legislation is invalid because of the implied freedom, what the restriction was that was accepted by both parties is that the implied freedom was the issue to be determined but at the level of the interpretive principle and at the level of the invalidity of the legislation principle as well. We say that is how it was put below. It was not just an invalidity case. So, can I move on, your Honours

EDELMAN J: In other words, your argument on interpretation would fail without the benefit of an additional added interpretive principle based on the implied freedom?

MR MERKEL: Yes, your Honour, but what my learned friends accept is that our argument is not new insofar as it comes from paragraphs 39 to 41 of our written submissions, which are entirely directed to the interpretive principle, not to whether the section is invalid.

NETTLE J: Can I just ask you one thing, Mr Merkel: if you failed, as it were, at the application level I know you argue against that could you possibly succeed at the interpretive level?

MR MERKEL: I am not sure what you mean by “the application level”.

NETTLE J: The way in which it was decided by the Tribunal – namely, that there had been no breach of the Code by reason of anonymous communications and therefore it was not validly within the section to give the woman the sack. That is the way it was decided. You want to argue that not only was the application or decision beyond power because it was an anonymous communication but also that the Act is a contravention of the implied freedom if and insofar as it might be taken to apply to anonymous communications.

MR MERKEL: Your Honour, with respect, the very last findings of the Tribunal are not that easily characterised as findings based on invalidity.

NETTLE J: Just assume that they are to be taken as meaning that, the conduct was not such as to warrant the sack because it was anonymous. If you were to fail on appeal in respect of that conclusion, could you possibly succeed on your proposed interpretation argument?

MR MERKEL: Yes, your Honour, because the interpretation argument goes to the anterior point as to whether her conduct fell within the provision as we would put it should be interpreted, having regard to the implied freedom. And having regard to the implied freedom, our argument at paragraphs 39 to 41 is that that requires a construction that excludes anonymous communications from falling within the section.

NETTLE J: So the argument would be all anonymous communication is without the section?

MR MERKEL: Anonymous communications fall outside the section. They cannot fall within the section.

NETTLE J: So no anonymous communication is capable of coming within the section would be the argument?

MR MERKEL: Yes, that is right, your Honour, but the way in which the Tribunal made its findings on anonymous communications it actually defined them. I will take your Honours to it. I think it was at paragraphs 92 and 94, so that we are clear about what we it is page 53, paragraph 92. What the Tribunal said is that the focus was:

on two categories of public comment: open . . . and anonymous

and treated references in the submissions to private communications as better characterised as anonymous communications “as defined above”. And the above takes us back to paragraph 91, which refers to material:

posted anonymously, or using an ‘alias’ or pseudonym, and should bear in mind that . . . they do not identify themselves online as an APS employee or an employee of their agency, they could nonetheless be recognised as such.

So that what we say is, and the construction argument is based upon that the requirement of what we say is an immediate nexus between the conduct and the harm said to be flowing from breach of section 13(11) and 10(1)(a) is that anonymous communications are not capable of resulting in that harm if the person making the communication is not identifiable as a member of the public service.

KIEFEL CJ: So your argument is it is not capable of harming the public service in its reputational aspects? And this is the very area that the Commonwealth and Comcare say that Comcare would have adduced evidence if it had known that the matter was to be conducted on that factual basis.

MR MERKEL: Your Honour, that is to be gleaned from the conduct of the case because we say it is a question of law that really is being determined here on the facts agreed, with anonymity being central to the issue of whether there was a breach, and central to whether the statute was valid. But can I take your Honour – I must make that good by reference as to how it was put in the submissions.

KIEFEL CJ: Yes, I think you were taking us to the further materials.

MR MERKEL: I do ask your Honours to note the really important finding at paragraph 116 – I will come to that later in my submissions which is to the effect that anonymous comment cannot cause the consequences that would justify the operation of the section. That is a central finding.

KIEFEL CJ: And that is justification in the context of proportionality testing for the implied freedom in accordance with Lange, as appears from paragraph 117, which follows?

MR MERKEL: Your Honour, that is right, but that finding is also the foundation, as I have said in my introduction, the foundation for why the question of whether the facts as found fall within the relevant sections is a question of law, which could not be affected by any additional evidence.

But insofar as evidence was called, the parties agreed to put both issues going to the invalidity to the AAT on agreed facts, and we say that it is the appellant that is resiling from that situation, not us. But again, can I take your Honours now to the applicant’s submissions, which is in the respondent’s book of further material at page 41.

NETTLE J: Just so that I am clear as you proceed, “anonymous” means incapable of being identified by any means, does it?

MR MERKEL: At the time at which the communication is made, at the time of the behaviour – yes, your Honour, that is a fair way of putting it.

GORDON J: Just so I am clear, that temporal connection is important to your argument, i.e. you only look at the time at which the conduct occurred?

MR MERKEL: Critical, your Honour. That is the central difference between the Commonwealth and ourselves.

NETTLE J: So if there were another fact, say published by a third party the next day, which fortuitously identified or enabled a reader to identify the original publisher, that would still not be a contravention of the Act?

MR MERKEL: If the republication arose from the behaviour of the public servant

NETTLE J: Just to say a fact was published by a third party which had nothing to do with the public servant, but by reason of its publication the reader of the public servant’s tweet was then able to identify her.

MR MERKEL: We would say that the public servant’s conduct is not caught by the sections, your Honour, because the behaviour of the public servant which is critical and the requirement to uphold the values occurred on the previous day. The fact of republication by a third party without authorisation or involvement of the public servant cannot bear upon

EDELMAN J: I think the example being postulated is one which would associate the applicant with the tweet, so a tweet which associated Ms Banerji with the Twitter handle user as I understand, you say if a tweet which gave that association occurred an hour after the relevant publication then it would remain anonymous, but if that tweet had occurred an hour before the relevant publication it would not be anonymous.

MR MERKEL: Yes, your Honour, it is the behaviour of the public servant in failing to uphold, if I can just refer to it as the apolitical value, that is, the breach of the Code.

NETTLE J: But surely the first publication would create the risk of discovery.

MR MERKEL: There is always the risk of discovery, your Honour, but the risk, we say, is not the behaviour that is relevant. The behaviour that is relevant is the publication that is anonymous.

NETTLE J: But if you create a risk of people appreciating that you as a public servant are damning the policies of the department which you are employed to serve, is it not relevant to whether or not you are acting in accordance with the requirements of the Act?

MR MERKEL: Your Honour, everything that the Commonwealth is putting gives all the work to be done in these hypothetical situations in sections 13(11) and 10(1)(a), but there are other sections of the Act, for example, section 29(3)(b) of the Act, has a ground of termination where an employee has lost an essential qualification for performing their duties. So discovery in some of the hypothetical or more extreme cases may give rise to consequences in other sections of the Act.

GORDON J: That might be so, Mr Merkel, but as I understand your submission, one could have a senior public servant make an off the record briefing to the press and you would say that that is anonymous and therefore it does not bite. Two minutes later the press publishes it on some form of social media or otherwise or even on electronic news service, and the Act does not bite?

MR MERKEL: No, that is not our case, your Honour, because that is not an anonymous publication. If the person publishes comment to journalists with the intention of publishing or not publishing, their behaviour is not anonymous because they are recognised as a public servant. Here we are in the

GORDON J: So the off the record briefing that you do not think falls within your category of a

MR MERKEL: No, because the person is identified as a public servant and given special status by the press as a public servant, so the behaviour of the public servant would be the communication in failing to uphold the values by the behaviour in question being disclosing

KIEFEL CJ: In any event, Mr Merkel, I think we were looking at the conduct of the case.

MR MERKEL: Yes, your Honour. Can I go back to that? Your Honours, in our respondent’s book of further materials the submissions put of the applicant are at page 40. It starts at 41. Can I just take your Honours quickly through the relevant sections? At 6(a) at page 41, there is the anonymity issue raised. At 6(c), the only question of fact is set out about the possibility of a tweet being carried out in work hours. At paragraph 9, we start with the contention that:

any construction of the Code as a statutory instrument . . . must be consistent with –

and they introduce:

the ‘principle of legality’ –

and:

The Constitutional implied freedom –

as well as section 15A. So, we are straight into the question of construction. At paragraph 10:

The Code of Conduct cannot and does not reach the kind of political comment made, in the manner in which it was made, by the Applicant, and accordingly the exercise of the disciplinary power . . . was inconsistent with the constitutional restraint –

that is, construction of a section having regard to the constitutional restraint.

KIEFEL CJ: Perhaps you could just keep to what has actually been said in the submissions.

MR MERKEL: Yes, your Honour. The “principle of legality”, set out at paragraph 12, which is onwards to 15, which is the principle saying that - 15:

This principle is relevant to how the Code is construed and whether its construction extends to removing the common law right of employees to engage in private political communication -

which the Tribunal treated as anonymous communication. Then the constitutional segment is referred to at paragraph 17. These are the critical sections of the submission because these were

KIEFEL CJ: They are, are they not? Paragraphs 17 to 54 address the implied freedom and how they affect the validity of the Code.

MR MERKEL: We say the validity of the decision as well as the Code by reason of construction, your Honour, because

KIEFEL CJ: It is the validity of the decision through the application of the implied freedom to the Code.

MR MERKEL: With respect, we would say that there were two issues raised, your Honours, and two issues dealt with by the – two issues considered by the AAT. But at 17 it says the same doctrine precludes:

a Commonwealth statute being accorded a construction . . . that would exceed the limits of the legislative power i.e. the Public Service Act 1999 cannot explicitly limit freedom of political comment and cannot achieve the same outcome via the manner in which the legislation is:

(a) construed (the Legislative restriction); or

(b) applied by the Executive (the Executive restriction).

Then the main contention is put that:

The Applicant contends that the Public Service Act 1999 and its statutory Code of Conduct cannot limit or burden an employee’s common law right or freedom to make the kind of political comments made by the Applicant, in the manner in which she made them; nor does it permit the Executive to apply the Code in a manner that has the same outcome.

KEANE J: Yes, it is “cannot”, not “do not”. The contention is that they cannot do it, not they have not purported to.

MR MERKEL: Your Honour, that is right, but the way in which the interpretive principle is put at paragraphs 39 to 41 is that the implied freedom requires the interpretation that has that consequence. Then can I go to paragraph 33. It is to be noted that in the present case the applicant challenges both the construction of the statutory provisions, the Code of Conduct, and its application by the respondent. At paragraph 68, which is at pages 58 to 59, proposed questions are:

Did the Code of Conduct in the Public Service Act 1999 provide a legal basis for the termination of the Applicant’s employment in the circumstances of her case, having regard to the constitutional freedom of political communication?

We say that is a question of construction. Sorry, the first question is the constitutional question but the second question:

Was it a valid decision . . . to find a disciplinary breach and impose the sanction . . . having regard to –

the implied freedom, is the very issue that we raise as to whether the decision was valid. So we say both grounds of invalidity set out in the addendum to the agreed facts are raised specifically as questions in paragraphs 68(1) and (2).

Can I next take your Honours to Comcare’s written submissions in response, which are at page 87 of the respondent’s book of further materials, and at paragraphs 20 to 22 those issues raised in 17 to 18 and the ultimate questions are addressed and traversed. What Comcare is saying in paragraph 20 is it accepts the implied limit:

places limits on the capacity of any Commonwealth statute to restrict the right . . . Nor can the statute be applied in a manner that has the same outcome.

Then, addressing paragraphs 17 and 18 of what I have just taken your Honours to of the respondent’s submissions, Comcare says:

As the question of the lawfulness of the statute and the lawfulness of the exercise of the statutory power in the specific case raise conceptually different issues it is necessary to deal with them separately.

“Conceptually different issues” are the two issues which we say were addressed in Ms Banerji’s submissions. Then, at 22:

The Respondent contends that the Code of Conduct provided for in the PS Act, properly construed, is within the legislative competence of the Commonwealth Parliament. Further, the specific exercise of the power fell within the authority conferred by the Parliament on the Delegate and constituted a lawful exercise of the power. Consequently, the decision to terminate constituted reasonable administrative action taken in a reasonable manner.

Can I ask your Honours just in that context to have a look at paragraph 96 of the Tribunal’s decision which is in the core appeal book at page 54.

KIEFEL CJ: Just before you do, whilst you are on Comcare’s written submissions, where does it deal with the question of the exercise of the power and the extent of the power as a matter of construction?

MR MERKEL: It comes up at 60 to 62, your Honour, but I will take your Honours through to that. The main paragraphs

KIEFEL CJ: That is an alternative submission to the validity question which the Tribunal deals with shortly because it is focused on the implied freedom and the validity of the statute?

MR MERKEL: Yes, that is so, your Honour. Paragraph 96 of the Tribunal’s decision at page 54, says that:

For its part, Comcare appeared to assert that the Code applied with equal force whether the expressions were open or anonymous. It is convenient therefore for the Tribunal consider the application of the implied freedom to comment falling into each category, even though, of course, none of Ms Banerji’s tweets fell under the rubric of open comment.

KIEFEL CJ: So that is looking at how the implied freedom would deal with conduct of any sort?

MR MERKEL: Yes.

KIEFEL CJ: That is consistent with a consideration of how the implied freedom works on a statute?

MR MERKEL: But in the context, your Honours, the two alternatives that were placed before the Tribunal for decision, the construction of the statute having regard to the implied freedom and, on the basis of that construction, whether the construction was incompatible with the implied freedom and both of them rose from the essential element, was the decision invalid on either ground having regard to the freedom of political communication. I was next going to take your Honours to paragraph 33

KIEFEL CJ: Of?

MR MERKEL: Sorry, your Honour. I was on Comcare’s submissions – sorry, 35, your Honour, at page 92:

to the extent that statements and communications by public servants outside of work fail to uphold the APS Values, by, for example, compromising the APS’s reputation as an apolitical public service or in some other way harming the integrity or reputation of the public service, those statements can constitute a breach of the Code of Conduct. Public Servants are otherwise free to make whatever statements (political or otherwise) they choose outside of work.

That goes directly to the question of the Code of Conduct and it is

GORDON J: But it goes to - in the context of looking to the way in which the statute operates in the context of the implied freedom.

MR MERKEL: We say having regard to the implied freedom, how the statute is to be construed. This Court has said on so many occasions that in any implied freedom case, there is always the anterior question of the proper construction of the section.

KIEFEL CJ: Well, anyone could accept that Mr Merkel, but that is not the process that you are undertaking. The process of construction you are undertaking is for an entirely different purpose.

MR MERKEL: Well, your Honour, paragraph 60 goes straight back to the question of construction again as the alternative basis on which the proceeding is - the decision is said to be invalid, where Comcare says:

However, if the Tribunal considers it necessary to consider the question of whether the decision of the Delegate was ultra vires, the Respondent submits that the decision of the Delegate was clearly open to her and supported by the legislation -.

and then goes on to deal specifically with the construction question. The section says “uphold at all times the APS values”.

KIEFEL CJ: This is the residual question that really was not dealt with.

MR MERKEL: It was not

KIEFEL CJ: It fell away.

MR MERKEL: In the decision, yes, your Honour, but it did not fall away as the issues that were put for decision by the Tribunal. We say that that was then raised, but we then go to our reply submissions, your Honour, where the point is again taken up in paragraphs 6 and 7. This is at page 99, paragraph 6. They go to anonymity and we say that this was the central issue raised in the case, that because of the anonymity, as the Tribunal ultimately determined it to be, there could not be – it was not capable of constituting a breach. The other response is at paragraph 11 at page 100 which says:

Public servants have the full rights as citizens including the right to criticise the government or its policies as long as they do not do so, explicitly or implicitly, in an official or assumed official capacity -

Again, when they say the applicant did none of these things, that is an argument as to why her conduct does not fall within the section properly construed, having regard to the implied freedom. So we say, your Honours, that both questions were fairly put before the AAT in a way that is far less precise than would have been the case if there were pleadings. But they were both raised in the conduct of the case in the submissions.

The Commonwealth’s objection that Comcare would have put on evidence had the argument been formed as in the notice of contention we say should not be accepted. Can I ask your Honours to note that the Commonwealth argument and the respondent’s argument both do not accept the argument, or the view put by the AAT, which has been supported here by Western Australia and to a certain extent South Australia, that the literal construction operates.

KIEFEL CJ: Mr Merkel, how do you state the question of construction for the Court? What is the question?

MR MERKEL: We have endeavoured to state it, your Honour, in paragraph 3 of our supplementary submissions. We say the argument has two components, your Honours. One is a question of construction, which is a question of law on which no evidence

KIEFEL CJ: Well, what is the question because that is a melded submission? What is the question of construction you take out of that, that stands apart from the question of validity of the statute, having regard to the implied freedom?

MR MERKEL: The question, your Honour, is whether what I will call the textual tools, the context, purpose and legislative history would require that there is an immediate connection between the behaviour that constitutes failure to uphold the values and the conduct in question which, in respect of anonymous communications, cannot fall within that interpretation of the section.

KIEFEL CJ: That is to say it is concerned with the scope and operation of the Act?

MR MERKEL: Yes, your Honour, having regard to the implied freedom.

KIEFEL CJ: I thought it was an anterior question – you had not got to the implied freedom yet.

MR MERKEL: Well, your Honour, we go to the implied freedom as an interpretive principle and that is exactly how it was put before the AAT, and exactly how it was put in our written submissions. But the ultimate question is, is the Code of relevant provisions, the Code of Conduct breached by communications that are anonymous in that the immediate effect does not make the Australian Public Service status of the person communicating identifiable.

NETTLE J: That is not the question of construction, is it, or is it?

MR MERKEL: That is the ultimate question, your Honour

NETTLE J: Yes, I know it is the ultimate

MR MERKEL: but the question of construction, which we say, is a contextual construction which the Commonwealth and ourselves appear to be in agreement on, except we have a narrower view and that is that, on the proper construction, the immediate context is to require some connection.

KIEFEL CJ: Well, it is section 13(11) that you are construing, is it?

MR MERKEL: Yes, your Honour. We are construing section 13(11) in its operation on section 10(1)(a)

NETTLE J: And the argument is that, upon its proper construction, it is incapable of applying to anonymous communications, is that it?

MR MERKEL: As such, yes, where the behaviour in question consists of anonymous communications. That is so, your Honour.

EDELMAN J: But you only get there on that construction point if you are right about the implied freedom, albeit using the implied freedom as an interpretive principle. In other words, if one put to one side the implied freedom, would you accept that your construction would not be available?

MR MERKEL: Your Honour, it is not available on the way the case was conducted if it does not get there via the interpretive principle of legality and the implied freedom. So I am answering yes to your Honour.

KIEFEL CJ: I do not think that was a question.

MR MERKEL: The answer is yes, your Honour. If we cannot have our construction on the basis of the implied freedom, we cannot succeed. It is having regard to the implied freedom that is the essential element of our construction argument.

KIEFEL CJ: And how do you apply the implied freedom so that the subsection does not apply to anonymous communications? You are reading it down. That is really what you are doing, are you?

MR MERKEL: Your Honour, we would prefer to say we are construing it having regard to the normal principles of construction and one of the principles which we will take your Honours to in due course, if we are able to, is that the legislative history would show that no mischief was identified in respect of anonymous communications but rather the legislative history would show that the section was not intended to operate in these circumstances and we have tried to summarise what that demonstrates at paragraph 38.

KIEFEL CJ: That might be relevant in any event to the implied freedom. We can put that to one side.

MR MERKEL: Yes, your Honour, but we say that to get to the implied freedom question one has to construe the section and there are three

KIEFEL CJ: Yes. You have said it is anterior. I have understood that.

MR MERKEL: And the problem we have in respect of our learned friend’s application is that three possible constructions have been put to the Court: one is the literal construction; two is the Commonwealth’s, what we call “broader contextual construction”; and, three is our narrower contextual construction.

The essential difference between us and the Commonwealth concerns publications such as anonymous publications which cannot have the impact on the public service’s reputation or being apolitical because we say anonymous communications are in the realm of public discussion of political matters and we say are not intended to be caught by the section and the legislative history offers fairly strong and cogent support for that.

KIEFEL CJ: Mr Merkel, do you have any further submissions in relation to the notice of contention and the way in which the matter was argued below?

MR MERKEL: Yes, your Honour. Can we direct your Honour to the paragraphs in the Tribunal’s decision which we say addresses these issues. I will give your Honours the paragraphs. Paragraph 120 at pages 61 to 62 of the core appeal book. Paragraphs 124 to 127 of the core appeal book at pages 64 to 65 where the Tribunal said at paragraph 128 at page 64 it was unnecessary to resolve the question of construction, and we say that the notice of contention advances the ground that was before the Tribunal but which it did not ultimately resolve.

KIEFEL CJ: That brings us back to the question of why, if the Tribunal had not addressed the question you are now seeking to raise, this was not raised in the Federal Court before the matter was removed, because it was removed on the basis that there was one issue relating to the implied freedom and a pure question of law, as section 44 of the AAT Act allows for.

MR MERKEL: The only response I can give to your Honour is that it was raised at the directions hearing as a notice of contention and there is no

KEANE J: Well, no, that is not true. That is just not true, Mr Merkel. What you said at the hearing is that you had not yet turned your mind to whether there needed to be a notice of contention, but you asked to be allowed to put one in. There was no suggestion that you were going to make a contention for anything other than an argument that may not have been addressed by the AAT as support for its conclusion on the question of law that was sought to be removed by the Commonwealth.

MR MERKEL: That is correct but, your Honour.....it must have appeared on the transcript that we had not turned our mind to it. We did in the following seven days and filed a notice of contention and no objection was taken to it until we got

KIEFEL CJ: That is because the terms of it were entirely unclear until your written submissions were filed in this Court, to which the Commonwealth immediately responded.

MR MERKEL: Your Honour, what we would say is if we are right and it is a question of law and if there was some procedural defect, we would say no prejudice is suffered if we are right in our primary submission. But can I just conclude our submissions, your Honours. We say that the underlying conduct of Ms Banerji as agreed and as found by the Tribunal, ultimately our contention is that it is incapable of contravening sections 10(1)(a) and 13(11) on their proper construction. Having regard to the implied freedom, we say where the facts are incapable of satisfying the statutory language is a question of law that depends upon the proper construction of the statute and that is the issue raised by the notice of contention and we say was the issue raised before the Tribunal, albeit that it did not decide it. If your Honours please.

KIEFEL CJ: Yes, thank you. SolicitorGeneral for the Commonwealth.

MR DONAGHUE: Your Honour, can I ask Mr Lenehan to address your Honours on this point.

MR LENEHAN: Your Honours, the issue is new and it raises questions of fact that Comcare has had no opportunity to address. Your Honours have seen the issue described as “the only issue”, which appears in paragraph 38 of the statement of agreed facts which was reproduced by the Tribunal at core appeal book 11. The words “having regard to the implied freedom of political communication” are the important words there. They show, your Honours, that if there was in fact an anterior question of construction without having regard to the implied freedom, then it was not one that the Tribunal was ever going to get to on that agreed issue.

Rather, as your Honour the Chief Justice said, which we embrace, the assumption is that there was going to be a requirement to look to the statute through the lens of Lange and the respondent had to succeed on that argument. Now, we accept that the Court should have regard to the actual conduct of the case. We also accept that there was an argument put in the Tribunal which can be described in broad terms as a construction argument but it is that kind of construction argument.

KIEFEL CJ: Sorry, what do you mean “that kind of construction argument”?

MR LENEHAN: Looking to the statute, seen through the lens of Lange. There is no broader or other anterior question of construction in issue.

KIEFEL CJ: What do you say the Tribunal was addressing at the conclusion of its reasons and the paragraphs on which Mr Merkel relies?

MR LENEHAN: It is addressing the Wotton

KIEFEL CJ: The alternative argument.

MR LENEHAN: Yes, it is. Can I show your Honours the crucial part of the written submissions? Mr Merkel has taken your Honours to them. He has missed what is really the central aspect of his client’s argument, so if you go back to the further book and go to pages 53 to 54. This is what it all comes down to. So, you see it is headed:

The application of the Lange tests to the APS Code of Conduct:

It is that sort of analysis that is being undertaken here. Paragraph 48 gives your Honours the key to what is happening:

If the Code of Conduct can extend to prohibiting the Applicant’s participation in private communication, debate and commentary . . . then it burdens the freedom of political communications –

This whole submission is put on the basis not of some special carveout for anonymous conduct, it is put on the basis of a distinction between things that are described as “private” and things that are described as “public”. You see that again in paragraph 50 when the point is made:

If the Code did extend to the private political communications of an APS officer –

and continues. Now, the point that is being made your Honours see in more detail on the next page at page 54 and then paragraph 52 and then 53. So, 52:

The Code is about regulating the conduct of APS officers in that capacity.

In that public capacity:

It is not about regulating their personal political beliefs –

And even more clearly, more detail is then given to that in the next paragraph:

The Code may legitimately regulate public political communications by APS officers where that communication would involve the use of Commonwealth resources or the disclosure of confidential departmental information.

That seems to have in mind some idea of misuse of public office:

It may legitimately regulate public communication in which an APS officer seeks to rely on their office as a basis for, or to lend credibility to, their public statements –

Now, the reference there to Gaynor is also important. If your Honours go back to page 47 you will see that this is at the partial paragraph that appears at the top of the page, this is a discussion of the facts of Gaynor and we emphasise Mr Gaynor:

cited his own experience in the army as the basis for his views.

Those are the attributes that are being relied on to say this kind of communication was potentially public communication to which the Code applies; we, the respondents, distinguish that from a different category which they label “private” communications to which the Code cannot apply and the reason that it cannot apply is then revealed starkly by the very next paragraph 54 which is the entire case:

By its actions in dismissing the Applicant, the Commonwealth has impermissibly trespassed on the constitutionally forbidden ground of personal political communication.

So, it is that category that is said to be ruled off limits by what is described as an application of the Lange test to the APS Code of Conduct.

GAGELER J: Mr Lenehan, can I just ask you about paragraph 116 of the Tribunal’s reasons? It was referred to by Mr Merkel. There is a sentence, I think it is the third – the fourth sentence in that paragraph:

A comment made anonymously cannot rationally be used to draw conclusions about the professionalism or impartiality of the public service.

Are we to take that as a finding of fact?

MR LENEHAN: It appears to be, as her Honour the Chief Justice said, an observation that is made in the course of applying the Lange analysis. So, it may in, I suppose, a broader constitutional fact – idea, be that kind of finding.

GAGELER J: If it is a constitutional fact then it is also a legislative fact. The difficulty I have is then in light of that fact if we treat it as a fact seeing how it could be said that there is a breach of section 13(11).

MR LENEHAN: Yes. Can I say this? That was not the argument to which Comcare understood itself to be responding to.

GAGELER J: I fully understand that. The difficulty is we have this sentence and I need to know what to do with it.

MR LENEHAN: Your Honour, in my submission, that does not detract from the point that I am seeking to make, that is, this argument, the argument that I have just shown your Honours by reference to the written submissions, and which also appears clearly from the very paragraph that Mr Merkel took your Honours to in reply which is a condensed version of the same thing, depends crucially on the notion of the distinction between “private” and “personal” and this additional element which is now put is a matter on which we would have potentially sought – rather, Comcare could have sought the opportunity to adduce evidence on.

EDELMAN J: The sentence that Justice Gageler has drawn your attention to was challenged by you – by the Commonwealth in the Federal Court, was it not?

MR LENEHAN: I believe that is so.

EDELMAN J: That was one of your grounds of appeal was that that finding of legislative fact was incorrect, ground 1b.

MR LENEHAN: Yes, that is so.

GAGELER J: So, is that before us?

MR LENEHAN: It is – but, in the area of the implied freedom analysis, yes, and not on the freefloating anterior question of construction.

GAGELER J: It is rather artificial.

MR LENEHAN: I have alluded to this already. The real question that we have tried to identify as the essential factual issue, the factual leap, is related to that effect on the public service – does it cause adverse effects on the APS? In circumstances where the case as put below was drawing a distinction between personal and private, the question of whether there was some adverse effect more generally, necessarily caused by anonymous conduct, was something that we would have wished – or Comcare would have wished potentially to adduce evidence on.

Can I show your Honours – there are in the materials before the Tribunal hints of how that might have been done – if I could show your Honours part of the book of further materials and specifically the complaint of Mr Logan. So, that appears at page 17 of the book of further materials. If I could direct your Honours within that complaint to page 20, under the heading, “Issues”. Mr Logan, in that paragraph, refers to their being:

a serious issue of trust around –

Ms Banerji’s:

activities in social media channels.

That was on the basis of what he describes earlier in the letter, on page 17, as his strong suspicions that Ms Banerji had been using her:

Twitter handle . . . to post often highly critical posts about –

not only the government and government policy but also the departmental staff. So, the erosion of trust to which Mr Logan was referring could only really have been internal – how Ms Banerji was being perceived by her colleagues and her superiors, albeit on the basis of suspicion. It illustrates, in my submission, the capacity for such comments to affect the functioning of the APS, even when they are made without putting one’s name to them and even when they are, at that stage, only suspected.

We draw attention to that to illustrate that this was an area which could potentially undermine the relationships between officers who comprise the APS, so in that sense affect the functioning of the service. Mr Logan’s letter also, over the page, on page 18, extracts an aspect of the guidelines. You see that at about line 10, where he said

NETTLE J: Could you speak up just a little bit, please?

MR LENEHAN: I am sorry, your Honour, yes. So, line 10, he starts – there is a paragraph:

As 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.

We have canvassed in our written submissions that issue of the possibility of later revelation and harm. It illustrates that point that your Honour Justice Nettle raised with Mr Merkel and it also, more particularly, illustrates that there was no evidence before the Tribunal and is no evidence before your Honours as to the magnitude of that risk for example, from an IT expert

Your Honours simply do not know that. The reason we do not know that is because that was not an issue that we appreciated was being put below and was not an issue that Comcare had the opportunity then to adduce evidence on. In that same area, Comcare could have adduced evidence from senior public servants we have referred to this in our further written submissions – as to the possible effect of that exposure that that might cause to the APS, its reputation or its integrity as an institution.

So that is how we identify the prejudice that is caused to Comcare by the way this has proceeded. That is the principle basis upon, as your Honours have seen, we say that the notice of contention should not be allowed to be relied on.

GAGELER J: Mr Lenehan, we are to proceed is it on an assumption or on a fact that an anonymous communication can in fact adversely affect the integrity and good reputation of the APS?

MR LENEHAN: I think your Honours are proceeding on an assumption as to that matter, yes.

KIEFEL CJ: What assumption? What is the assumption?

MR LENEHAN: The case that is put against us says when one has anonymous conduct that, by definition, cannot affect adversely the APS.

GAGELER J: When you say “by definition”, I think it is cannot in fact.

MR LENEHAN: Yes. Perhaps I should be looking at Mr Merkel’s written submissions.

GAGELER J: There is a difference between saying that section 13(11) involves some implied carve-out and saying that, in its terms, it cannot be met. One is a question of pure construction; the other is factual application.

MR LENEHAN: Yes. I think the answer to your Honour’s question is that the Court should proceed on the basis that it will have that adverse effect in some cases which will be a matter for evidence.

GAGELER J: What are we to do with that troublesome sentence if we are to proceed on that assumption?

MR LENEHAN: Your Honour, the point I have been labouring is that that then does not alter the submission I have been making as to the arguments that were put before the Tribunal.

KIEFEL CJ: On one view the Tribunal is talking in logical terms, not in evidential terms.

MR LENEHAN: Yes, correct.

KIEFEL CJ: So the question of logic is open to us.

GORDON J: That is the way South Australia seems to deal with it in their submissions. They deal with it as a matter of logic at paragraph 79 to contend that the reasoning is in error in relation to that sentence.

MR LENEHAN: Yes. I embrace that, your Honour, yes. Unless your Honours have any questions for me, those are the submissions that the Attorney seeks to make on the notice of contention.

KIEFEL CJ: Thank you. Mr Merkel, do you have any submissions in reply?

MR MERKEL: Yes, just briefly, your Honours. Ground 7(b) of the notice of appeal

GORDON J: I am sorry Mr Merkel, I could not hear that number.

MR MERKEL: Sorry, ground 7(b) of the further amended notice of appeal.

BELL J: Where do we find that?

MR MERKEL: Page 85, your Honour, of the core appeal book - sorry, your Honour. The issue is raised directly of the construction of section 13(11) and reference is made to paragraph 116 which is the foundation for our argument. We say that the effect of what my learned friends are putting is that they can raise that as a ground but we cannot contest it on an alternative construction being the one we wished to put forward.

On paragraph 116, what we would wish to say is that it is correct that the Commonwealth have raised in their submissions at paragraph 23, they have disagreed with the merits of that finding, but there is no suggestion that the Tribunal denied Comcare procedural fairness in making the findings at that paragraph, and the Court should, therefore, proceed on the basis that it was procedurally open to make those findings.

There is an argument about whether the findings are a fact, an assumption or logic but we say that we would argue that they are findings of fact made on the material and the material concerning Mr Logan is a good example. What, in fact, happened is that the parties put all the evidence they wished to and, I think, at paragraph 93 of the Tribunal’s decision, the Tribunal dealt with the Mr Logan episode and said it did not have any particular consequence.

So, we say that it is inappropriate, given the nature of the issues and the nature of the dispute about what findings were made and what the consequences were, that the issues raised on the notice of appeal and the conduct of the hearing below make this an inappropriate issue to be determined as a summary determination.

We say the appropriate thing is for your Honours to have heard the argument as your Honours have, but not to make a summary determination as to whether the argument is open. We say the issue and the interrelationship between all of the issues is one of some complexity and it is a matter that should and can properly be dealt with by your Honours in the decision and it will not disrupt the hearing, because as is clear, the parties’ submissions have not been interfered with by whether this point is open or not.

We would also indicate to the extent that it is felt by the Court that we have raised a new ground, and it is not a question of fact, we would ask for leave to argue that, and I do not understand any opposition of substance is put other than if it is a new issue of fact which we say it is not. If your Honours please.

KIEFEL CJ: The Court will take its morning break at this point.

AT 11.21 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.39 AM:

KIEFEL CJ: The argument now sought to be advanced on the notice of contention is new and involves questions both of fact and law. It was no part of the respondent’s case advanced before the Administrative Appeals Tribunal or in the Federal Court before removal of this matter to this Court. It was not evident from the notice of contention until the respondent’s submissions were recently filed. It is not in the interests of justice to permit a party substantially to depart from the case they conducted below. The Court is unanimously of the view that the parties be restricted to the one issue with which the Tribunal dealt. Arguments will be conducted accordingly. Yes, Mr Solicitor.

MR DONAGHUE: Thank you, your Honour. Your Honours, the parties are proceeding on the assumption that the order of addresses is the Commonwealth AttorneyGeneral followed by Comcare if it seeks to supplement our submissions, then the State interveners in support and then the respondent. So, subject to contrary direction from the Court, that is the assumption at the Bar table.

Can I start, your Honours, with a brief review of the key facts and ask you to take up the core appeal book starting at page 12, paragraph 8. The respondent was employed, as your Honours will have seen, by the department then known as the Department of Immigration and Multicultural Affairs. As you see in paragraph 8, from approximately January to July 2012 she posted tweets using the Twitter handle LaLegale and those tweets were followed by a number of people. One sees recorded at paragraph 12 that there were “over 700 followers”, direct followers, so not accounting for possible retweeting, and they were tweets that:

imparted strong criticism of the then government, the then immigration Minister, members of the Commonwealth Parliament, government immigration policy and the Department’s communications manager –

who was her superior. There are some examples of the tweets set out in paragraph 9 but that is a very small subset. Your Honours will see at paragraph 26 of the reasons on page 19 that the investigation identified over 9,000 tweets that were made to that group of 700 followers. So, in our submission, it is apparent that the tweeting behaviour that is at the heart of this case was obviously not private behaviour. It was public, albeit that the identity of the person making the communication was not immediately identified, or the tweets could not immediately be attributed to her because of the use of the pseudonym.

As to the character of the tweets, the Tribunal made some clear findings about that on page 59 of the core appeal book at paragraphs 109 to 110. There is a reference to there being little doubt that the tweets, or some of the tweets, had characteristics that would have taken them outside the protections in the case law, which I will come to later:

Some of the tweets are reasonably characterised as intemperate, even vituperative, in mounting personal attacks on government and opposition figures.

Then there is a quote from one of the Canadian cases that refers to two categories of tweeting - the whistleblowing, in effect, on wrongdoers in one category, and in the other category:

“petty dissidents, i.e., employees who argue with their bosses over matters of every day business judgment, or who slander their supervisors, or who badmouth their companies.

It seems to us, with the greatest respect to [the respondent], that she fell more into the second of those categories . . . It seems to us that the tone of her tweets carried her contributions beyond mere education and into the realm of partisan advocacy and personal vitriol.

So, that is, on the finding, the character of the behaviour that is in issue as to whether or not it did or did not contravene the implied freedom or the prohibition of that behaviour by the Code did or did not contravene the implied freedom.

While it is true that the identity of the person making the tweets, operating the LaLegale Twitter handle was not apparent at the time to the public at large, it does seem that little effort was made to conceal the respondent’s identity within the Department itself and to that end, can I ask your Honours to go back to a document Mr Lenehan took you to briefly in the document headed “Book of Further Materials” filed on 7 November and to go back to page 17.

Your Honours will see there the May 2012 complaint by Mr Logan. I am going to it just to direct your Honours to, first, the picture in the middle. You can see there is a picture on the screen that associates with the LaLegale Twitter handle. That is a picture that your Honours can see - there are many examples of the tweets in the book but if you take just a random example at page 73 of the book of further materials you can see just the page of tweets all with that picture appearing next to them on the screen next to the tweet that is posted. The complaint records - by the respondent’s manager - that she:

is strongly suspected of using this Twitter handle . . . to post often highly critical posts about the government, the minister, immigration portfolio policy, and on occasion, about some departmental staff (including me). She keeps this icon of a woman’s face and “LaLegale” on her work desktop screen.

So the notion immediately of anonymity is one that has a little more complexity than it might seem to have entirely in the abstract because both the name and the picture are there in her workplace when she is making tweets that include tweets that are critical not just of her Department but of people with whom she works.

Leaving the book of further materials and going back to the core appeal book, at page 14 of the book, you can see set out by the Tribunal the letter in which a delegate of the Secretary determined that the respondent had breached the Code. There is mentioned there of a number of provisions of the Code - sections 13(1), 13(7) and 13(11) of the Act. I will not take your Honours to it but the AAT at paragraph 123 proceeded on the basis which is also the basis of the parties before this Court. That finding rested substantially on 13(11) and it is that provision that is at the core of the arguments in this case.

So, the breach conclusion was reached on 15 October 2012. The final decision on sanction was then delayed by litigation initiated by the respondent which is dealt with in the agreed statement of facts at paragraphs 25 and 31.

I do not need to take your Honours to the details of it but the consequence of that litigation was that it was not until nearly a year later on 13 September 2013 that the delegate made the decision that is extracted in paragraph 13 on page 15 of the book, and that having recounted the breach is the decision that resulted in the decision to terminate the respondent’s employment with the public service.

Shortly thereafter, on 18 October 2013, the respondent made a claim for workers compensation under section 14 of the Safety, Rehabilitation and Compensation Act. That application was refused on the basis that her dismissal was reasonable administrative action taken in a reasonable manner, which is a limit or carve-out on the right to compensation under that Act.

As your Honours have seen – and I will not go back to it – the sole issue identified before the Tribunal was whether or not that exception applied, which it was agreed that it would do, unless the implied freedom had the effect that the termination decision was not lawful. So there was no suggestion that the sanction was disproportionate or anything of that kind. It was said unless the implied freedom means that the sanction and termination were not lawful then the refusal of compensation would stand.

The AAT of course overturned the decision refusing compensation and your Honours have seen a number of the relevant paragraphs already, but it did so based on a brightline distinction that the Tribunal drew between what it called “open comment” and “anonymous comment”. If your Honours go back to paragraph 53 of the core appeal book at paragraph 92, you will see that distinction being drawn. Open comment is:

where the identity of the public servant is known –

This is the way the Tribunal uses these terms:

and anonymous comment, where it is not.

It would be immediately apparent to your Honours that that definition of “anonymous comment” says nothing about a situation where the identification might be known to some people but not to others and it says nothing about when, the temporal component of anonymity. So it says nothing about whether known at the time of the post or known ever and that is an area of significant debate between the parties, the importance of those factors. In that paragraph, the Tribunal then says:

It seems clear that the guidelines –

That appears to us to be an error with respect to the Tribunal. It should be referring to the Code, that the Code sets out:

to regulate both open and anonymous comment.

The Tribunal notes that Ms Banerji was referring to private comments, as Mr Lenehan has already pointed out, but considers the comments are better described as anonymous public comments. The Tribunal’s analysis then, looking at the question through the frame of the Lange questions, goes on, as your Honour Justice Keane pointed out, to a conclusion starting from 97 and going through to 113, that with respect to what the Tribunal has called “open comments” the Code is unimpeachable in Lange terms and that really highlights the brightline nature of the Tribunal’s reasoning.

There is no difficulty with limiting open comment, if Ms Banerji had engaged in open comment, at 113 it said she would have breached her duty but then at 114 and following, through to 119, the Tribunal reaches a different conclusion with respect to anonymous comment which is said to have an entirely different complexion.

Again, there is no reference there to anonymous who or anonymous when but one has then the reasoning at 116 that has already been mentioned by the Court and we do say that, in context, what one sees – particularly in the sentence your Honour Justice Gageler has focused attention upon – is a step in the Tribunal’s logical reasoning process that says – that is directed to explaining why the Code, in its operation with respect to anonymous conduct, is not justifiable. And, that is how the reasoning in paragraph 116 ends. It says you would need a powerful and persuasive justification. And, 117 to 119 explained why, in the Tribunal’s view, there was no such justification.

It should be said – just looking at the top of page 61 – that the Tribunal was proceeding, in this part of its reasoning, on the premise that the law purported to prevent anonymous expressions of opinion, whatever the situation of the person using the medium. And, it was that that was said not to be justifiable. In our submission, that is not a correct understanding of how the Code should be construed. And, it also does not account for the possibility that the communication was anonymous when it was made but thereafter ceased to be so.

In terms of whether or not we are right in saying that that sentence is a statement of logical reasoning rather than fact, I would invite your Honours to contrast what one sees in 116 with the reasoning back on page 16 of the core appeal book at paragraph 16 where the Tribunal says:

There was one factual issue on which there was no agreement between the parties. That issue was the manner in which Ms Banerji posted one of her tweets.

There is then a couple of pages of reasoning where the Tribunal goes through the analysis of that factual issue and it ends up with a finding of fact by the Tribunal as to that issue, at paragraph 30.

So, it just appears, looking at the reasoning, that when the Tribunal thought it was resolving a contested question of fact, it engaged in it in quite a different way than the sentence one sees in the middle of 116. And that, in our submission, correctly reflects the fact that the parties were not debating about whether or not an anonymous tweet was capable of having an adverse effect on the public service. And, in the absence of a debate on that point, the Tribunal should not be understood to be making a finding of fact on that point as opposed to expressing a legal conclusion.

That is all I want to say about the facts, your Honours. In terms of the – before coming to the substantive issues on the appeal, there is one matter of detail in relation to the version of the legislation to which your Honours should be having regard. You have in the joint book of authority, two versions of the Public Service Act. As I have just noted in the summary I took your Honours through, there was a sanction decision made in October 2012 and then a – sorry, a breach decision made in October 2012 and then a sanction decision made in September 2013. In the middle of those two decisions, there were very significant amendments made to the Public Service Act which commenced on 1 July 2013.

The AAT proceeded on the basis that it was the Act as in force prior to those amendments that was relevant – you see that at paragraph 31, I will not take you back to it. Both the AttorneyGeneral and the respondent agree that that is the correct position, that is, that it is the Act that your Honours will see behind tab 2 that is the version of the Act that you should be looking at.

There is a potentially somewhat complex path of reasoning that I could take your Honours to, to explain that. But in light of the fact that the parties are agreed, I will not your Honours’ time with it, unless you would be assisted by me doing that. We have given your Honours a bundle of additional materials that has a few things that I need to take your Honours to in the course of my submissions, and we have included in there for the sake of completeness the transitional provisions behind tab 2 that get you to that answer, and it is relevantly items 20 and 23.

There is one particular respect in which I will need to go to those later in my submissions. But, in our submission, your Honours should proceed on the basis that it is the version of the Act behind tab 2 that governs. That requires me to make one very minor correction to our written submissions. If your Honours could just note that in paragraph 41, footnote 63 of our written submissions, we have referred to section 15 of the Act. And we there, in footnote 63 on the bottom of page 14 say:

Under ss 15(1) and (3)(8) –

That should read:

(3)(5) –

The version of section 15 as in force prior to the amendments did not contain subsection (8), that is the latter version of the Act. But subject to that correction, your Honours can, in my submission, proceed on that basis.

If your Honours could then turn, in the core appeal book, to the notice of appeal, which is at page 84. At some point this document was renumbered so that the paragraphs are consecutive, which means that the grounds appear as, relevantly, paragraphs 7, 8 and 9. But the first ground of appeal in paragraph 7 raises what, in our submission, is – sorry, your Honours, that is true what I just said, but in fact what I am directing my attention to now is the questions of law. So there are three questions of law, paragraphs 4, 5 and 6. As to question of law 1 in paragraph 4 the question is, in our submission, a very familiar one in this Court in that that is raising the question whether or not 13(11) and 15 are:

reasonably appropriate and adapted to advance the legitimate –

object there stated. That is, are those provisions valid when assessed against Lange and McCloy? And the premise for that question is that you can answer that question in relation to the statutory provisions on their face. That is, that you do not need to confine the operation of the provisions in order to reach the conclusion that they survive testing on Lange grounds.

KIEFEL CJ: Do you mean you test them in all of their potential operations?

MR DONAGHUE: Yes. You construe them and then having construed them, you test them on their range of available operations and if they are supportable justifiable, then you answer question 1, yes.

Question 2 in paragraph 5 is a little different. It is advanced in the alternative, so it assumes that you cannot do what your Honour the Chief Justice just put to me in all of the possible operations. So the premise is that some possible operations are not reasonably appropriate and adapted to the legitimate purpose, and then asks whether, in that circumstance, the Tribunal should have concluded that the provisions were, nevertheless, valid because the discretion that was conferred by them was susceptible of exercise in accordance with the freedom and the provision should therefore be construed so as not to authorise and exercise a power that goes beyond the constitutional boundary.

So they are the two issues which reflect, in our submission, what was in contest before the Tribunal. Mr Merkel has said there was a legislative question and an administrative question and, ultimately, the only question in fact was was this reasonable administrative action taken in a reasonable manner. But you could have reached the conclusion that it was not, either because the legislation was invalid or because the legislation did not authorise the decision that purported to have been made, because it needed to be confined in the manner identified in question 2.

GAGELER J: So does question 2 go to section 15?

MR DONAGHUE: Yes.

GAGELER J: And question 1 goes to section 13(11).

MR DONAGHUE: Read with 10. Our primary submission is that question 1 does not need to involve section 15, and that your Honours should address it just as your Honour Justice Gageler just put to me. We do have an alternative submission if we are wrong about that but that is essentially how it works. You only have a discretion relevantly to question 2 if section 15 is in the mix as part of the provisions that impose a burden.

We think that that division between questions 1 and 2 there raised, reflects the analysis that this Court adopted in Wotton, and can I ask your Honours to go to that at the outset. It is in volume 8, tab 43 of the joint book of authorities. And when your Honours have it, could you turn to page 14.

EDELMAN J: Sorry, which tab?

MR DONAGHUE: Sorry, your Honour. Tab 43.

GORDON J: I think it is tab 43.

MR DONAGHUE: Is that not what I said? Sorry. Volume 8, tab 43 is where it should be, on page 14. This is in the joint reasons of Chief Justice French and Justices Gummow, Hayne, Crennan and Bell. If your Honours would go first to paragraph 22, you will see there recorded the submission that was advanced by the Commonwealth which, in the last sentence of paragraph 22, is accepted by the Court. And it makes four points. First, that where the burden:

has its source in statute –

as is of course the case here:

the issue presented is one of a limitation upon legislative power; (ii) whether a particular application of the statute, by the exercise or refusal to exercise a power or discretion conferred by the statute, is valid is not a question of constitutional law; (iii) rather, the question is whether the repository of the power has complied with the statutory limits

I particularly emphasise (iv):

if, on its proper construction, the statute complies with the constitutional limitation, without any need to read it down to save its validity, any complaint respecting the exercise of power thereunder in a given case . . . does not raise a constitutional question, as distinct from a question of the exercise of statutory power.

So that is where it aligns with our question 1, in that we submit that without any need to read it down, your Honours could conclude that sections 10 and 13 comply with the implied freedom and, on that basis, there would then be no argument that could have supported the conclusion that 5A did not apply, that this was not reasonable administrative action because if you so conclude the statute is valid and there is no occasion to ask a constitutional question in assessing the validity of any decision under the valid statute. You just ask whatever the statutory ultra vires questions might be having regard to the statutory scheme and if the decision maker has made the decision in accordance with the statutory criteria, then the decision is valid without any need to ever reach the implied freedom.

Another way of putting that really is if one assesses a statute against the criteria in paragraph 22 and find it to be valid then no one litigating under that statute should ever again need to be arguing about the implied freedom in assessing decisions made under the statute. That issue has been resolved, the statute is valid and there is then a question of testing decisions against the statute. The position is, we think, different in relation to paragraph 23 but before your Honours read paragraph 23, could you go back to paragraph 21 which picks up an analysis of Justice Brennan in Miller which I am going to come to later in my submissions and approves it:

while the exercise of legislative power may involve the conferral of authority upon an administrative body such as the Parole Board, the conferral by statute of a power or discretion upon such a body will be constrained by the constitutional restrictions upon the legislative power, with the result that in this particular respect the administrative body must not act ultra vires.

So, the statutory power is constrained by the constitutional restriction. Then, in paragraph 23, the further submission which was accepted emphasised:

that if the power or discretion be susceptible of exercise in accordance with the constitutional restriction upon legislative power, then the legislation conferring that power or discretion is effective in those terms.

Again, it is said that:

No question arises of severance or reading down of the legislation

called for and no reason to apply Justice Dixon’s analysis in Shrimpton. In our submission, the reason for that is because applying the approach set out in Miller, approved at paragraph 21, one construes the statutory provision that is susceptible to being exercised in accordance with power but that potentially, on the face of it, might seem to authorise decisions that would go beyond what would be justified by drawing back as a matter of construction, the statutory power so that it goes no further than the constitutional limit.

Having construed the apparently openended decision in that way so as to authorise only exercises of power that are within the constitutional boundary, one again never gets to a question of severance or reading down because constructional exercise has confined the purported grant of power so as not to purport to do anything that is unconstitutional. I will develop that but that is question 2 on the questions of law which we submit that your Honours do not get to if we succeed on question 1, so I will come back to all of that.

In terms of our submissions on question 1, I do not propose to rehearse the very familiar constitutional foundations in sections 7, 24, 64 and 128 for the implied freedom but I would ask your Honours to supplement that familiar list by way of constitutional foundation for the freedom with a few provisions that are relevant in the specific context of burdens on the public service because the public service has its foundations in the Constitution and, in our submission, that is relevant when considering the way that the implied freedom applies to the public service because the implied freedom should take account of the public service for which the Constitution also provides.

Section 64 is of course in the familiar list. That is the provision providing for the appointment of officers to administer departments of State. So the Constitution contemplates that there will be departments of State. And in section 67 it also contemplates the appointment of “other officers of the Executive Government of the Commonwealth” to participate under Chapter II in the administration and execution of Commonwealth laws.

We also invite your Honours to note section 44(iv) dealing of course with the qualifications of members to be chosen or to sit in the Parliament and the prohibition on holding an office of profit under the Crown as one disqualifier. I will not ask your Honours to go to it but you will recall that early last year in Re Lambie, which your Honours have in volume 6 behind tab 37, your Honours looked at the operation of that disqualification and in the course of doing so, six of your Honours quoted with approval from Sykes v Cleary, where the Court at page 96 had referred to 44(i) and its prohibition on parliamentarians candidates for Parliament holding an office of profit under the Crown as having:

played an important part in the development of the old tradition of a politically neutral public service.

So the Court in Sykes, endorsed in Lambie, drew the connection between that qualification and the promotion of the politically neutral public service which, in our submission, lies at the heart of the purpose that the impugned provisions of the Code seek to advance.

In our submission, together those provisions contemplate, as part of the Executive Government of the Commonwealth, that there will be a public service which will be integral to the discharge of those functions and that that public service is to be an apolitical institution.

In that context, our submission is that a burden on the political communication of public servants may be more readily justified than it might be for some other groups, precisely because the imposition of that burden is directed to promoting one of the functionings of government that the Constitution contemplates.

I will not take your Honours to it, but by analogy with McCloy at paragraph 47, where the Court accepted it was possible sometimes to regulate representative government in order to protect it, in our submission here likewise provisions designed to protect the apolitical nature of the public service are advancing a purpose that the Constitution recognises in the provisions I have just gone to.

As to the first of the Lange questions, effective burden, we accept that the provisions of sections 10(1)(a) and 13(11) do burden the implied freedom. As your Honours have said too many times to cite, the question is directed to the general burden imposed on the free flow of political communication by those provisions, not to its operation in any particular case.

For that reason, the facts, particularly pertaining to Ms Banerji’s tweaking, are relevant only as an example of the practical operation of the Code and not otherwise. Again, as your Honours have often emphasised, most recently in Brown, the operation of the implied freedom is not a personal right.

I say that because when one looks at the way the Tribunal dealt with it, one sees, repeatedly, the use of language that conceived of the implied freedom as if it were a right available to Ms Banerji. So, just to give your Honours some examples, on page 12 in paragraph 7, there is a reference to:

The parties lodged submissions addressing the circumstances, if any, in which the implied freedom of political communication might be exercised.

As if it is a right that can be exercised, rather than a limit on power. At paragraph 67, on page 44, in the last sentence:

This necessitates an assessment of whether the tweets on which her termination was based constituted an exercise of that freedom.

Perhaps the clearest examples are at page 61 of the book at paragraphs 117 to 120 where there are repeated references, for example, in 117, at the end of the fourth line:

serious impingement on Ms Banerji’s implied freedom

In paragraph 119, under the quote:

The burden of the Code on Ms Banerji’s freedom was indeed heavy –

So, the way that the Tribunal dealt with the freedom, in our submission, made the very error that your Honours have repeatedly drawn attention to.

The same error was identified by the Full Federal Court in Chief of Defence Force v Gaynor, which I will not take your Honours to, but in that case the Full Federal Court allowed an appeal on the basis that the trial judge had, it was held, applied Lange at the wrong level. It had applied it at the level as if it were an individual right available to Mr Gaynor, rather than as a systemic limitation on legislative power. One sees, repeatedly – including in those passages I have just taken your Honours to – the Tribunal making the same error.

But, having said that, there is not any dispute that there is an effective burden, for the purposes of the first question, in Lange. One does then need, in our submission, to identify the nature and extent of that burden before you can engage in the justification analysis because it is necessary to identify what burden needs to be justified. And to develop that, can I ask your Honours then to take up the Act behind tab 2 in the first volume of the joint book of authorities, and to start with 13(11), which is on page 9 of the print or page 100 of the joint book:

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.

KIEFEL CJ: Mr Solicitor, did the Tribunal place any weight on “at all times”? Was that only in relation to the alternative Wotton argument?

MR DONAGHUE: Certainly at the stage of the alternative argument it did and it, effectively, said those words have to be

KIEFEL CJ: Whether it could read it out or not?

MR DONAGHUE: Yes.

KIEFEL CJ: But, it did not employ it in relation to the application of the Lange test.

MR DONAGHUE: Not as I read the reasons because there the only reasoning seemed to turn on the bright line between open and anonymous rather than on a temporal component. I will come very shortly to make some submissions to your Honours about both the phrase “behave in a way that upholds” and the phrase “at all times”, both of which are, we submit, integral to the nature of the burden.

One can see in that prohibition in our – or in that requirement, rather, three limbs, in that one must behave in a way that upholds the APS values and also the integrity and the good reputation of the APS; all of those requirements are imposed. The APS values is a defined term and that is what takes us back to section 10 where the Act provides that “The APS Values are as follows”, and there is quite a long list, but the relevant value for the purposes of this proceeding is paragraph (a):

the APS is apolitical, performing its functions in an impartial and professional manner

I will also make some submissions in just a moment about “apolitical”. In our submission, it is the requirement for the APS employee at all times to behave in a way that upholds the APS values, including being apolitical, that is the relevant source of the burden in this case because it is that requirement that the APS employee has to bear in mind at the time when they come to consider whether they are going to make a communication, whether they are going to make public comment on a particular topic and they need to consider, by making this particular comment, am I going to put myself in contravention of my obligations to uphold the APS values?

That question, in our submission, does not change – the nature of that burden does not change by reference to the penalty that might ultimately be imposed under section 15 in the event that the person chooses to make the communication and that communication is later held to contravene the Code in a way that attracts sanctions. In that respect, we respectfully endorse your Honour Justice Nettle’s analysis in Brown [2017] HCA 43; (2017) 261 CLR 328, which I would ask your Honours to go to briefly. It is in volume 3, tab 21. In Brown, your Honour Justice Nettle looked at this very question in terms of the relevance of penalty and towards the bottom of page 408, the last eight lines or so of that page, your Honour said in addressing questions of burden:

So, too, the fact that contravention of the Protesters Act may result in the imposition of a penalty greatly in excess of the penalties that might otherwise have been imposed under the FMA or another law, or pursuant to a common law cause of action, does not mean that a burden is thereby imposed on the implied freedom of political communication. As has been emphasised –

and there is a number of cases cited:

the freedom is concerned with burdens upon political communication, not burdens upon communicators. As such, what is relevant is the restriction of political communication by the prohibition of prescribed conduct and not the penalties imposed on persons contravening that prohibition.

In our respectful submission, that is consistent with the way implied freedom cases are usually addressed in this Court, so your Honours are of course reserved in the Clubb and Preston matters. The focus in those cases, in my submission, by all of the parties was not on the penalty that might be imposed as a result of contravention of the prohibition, but on the character of the prohibition itself and what it stopped people from doing. Similarly

KIEFEL CJ: Is that to deny that the extent of the penalty might operate as a deterrent?

MR DONAGHUE: Your Honour, we accept that there might be some cases in which it could be said that the character of the penalty is such that it has a chilling effect that magnifies the burden imposed by the prohibition itself. So that might most clearly be the case if there were a mandatory or very high penalty for some kind of particular behaviour, then I would not deny in that case that there was a correlation.

But here, in our submission, the scheme of the Code and the sanction provisions is such that there are a very wide range of categories of conduct that might be caught, not just in relation to apolitical, but the other values as well, and then a very wide range of possible sanctions that might be imposed on that very wide range of possible breaches.

So that the width of available penalty, on our primary argument, does not bear on the burden. The burden is identified as what it is that a person cannot do by way of political communication, in much the way that we understand your Honour Justice Nettle to have described it in the paragraph I have just read.

We similarly suggest that for example in the recent Unions Case, Unions (No. 2) that again the focus was on the prohibition, the cap on expenditure, rather than on what might have followed from contravention of that cap; it would appear from the way that that section was treated, that the character of the burden varied depending on the level of available sanction.

KIEFEL CJ: Is it relevant to bear in mind that any penalty must itself be proportionate to the conduct?

MR DONAGHUE: Yes, it is.

KIEFEL CJ: That is following the Miller approach?

MR DONAGHUE: Well, in our submission, we get there independently of Miller, your Honour.

KIEFEL CJ: Just under normal penalty processes?

MR DONAGHUE: Just under normal principles. So I said to Justice Gageler, in answer to Justice Gageler’s question about whether question 1 was just about 10 and 13, that was our primary submission – that is for the reason I have just given. If I am wrong about that, and section 15 is part of the burden, then we have an alternative answer and it is essentially what your Honour the Chief Justice just put to me.

But if the primary argument is right, that is significant, because it means that the assessment of the burden under the Code has no discretionary element to it because the question posed by 13(11) and 10(1) does, we accept, call for an evaluation of conduct, but not a discretion properly socalled. There is a right answer to the question, “Does conduct contravene the Code or does it not?”

And so the mode of legal analysis around confining discretionary powers would not be relevant, if we are right in the submission that I just put, that the burden arises separately from any question of sanction.

GAGELER J: Is it not relevant to your argument to note that the sanctions are all intimately related to the employment relationship, and not criminal sanctions?

MR DONAGHUE: Yes. Again, on the alternative argument, it is. If section 15 is relevant to the burden then that fact, their integral connection to the employment relationship and the fact that the discretion would have to be exercised reasonably in accordance with ordinary principles all means, we submit, that the burden is readily justified for all of those reasons.

But it would mean that if your Honours were against me on that point, so that the sanctions could, as a matter of construction, conceivably exceed the constitutional boundary, it would mean the Miller/Wotton analysis might be necessary to get you back within power.

Again, my primary submission would be even if section 15 goes to the burden for the reasons both the Chief Justice and your Honour Justice Gageler have raised with me that one could conclude that this regime complies with Lange without any need to get to the Wotton type question because it only authorises justifiable burdens on public servants.

Now, coming to the questions of construction, first in relation to the word “apolitical” in section 10(1)(a), our submission is that that word derives – or the meaning of that word is usefully informed by the syntax of the provision in that what is – the value is that the APS is political performing its functions in a particular manner, that is, an impartial and professional manner.

So, one immediately, in our submission, sees a connection between the value of being apolitical and the capacity of the APS to discharge its functions which points against any notion that this Code seeks to cleanse public servants of political opinions which is the rather colourful phrase that our friends use in their submission. There is no “cleansing” of political opinions. There is no reason that members of the APS cannot hold political views. What is important is that the APS institutionally is apolitical such that it can perform its functions in an impartial or professional manner.

The importance of that has long been recognised, including by this Court in a case we have not given your Honours but we have quoted it in footnote 55 of our submission – an observation of four members of the Court in Futuris where the Court said:

the whole period of the public administration of the laws of the Commonwealth –

or throughout the whole period:

has been the ethos of an apolitical public service which is skilled and efficient in serving the national interest.

In our submission, that proposition is right as a matter of history which I will briefly develop later but 10(1)(a) is just the current manifestation of a very longstanding principle that institutionally the APS should in order to discharge its functions properly have an apolitical character. What that means is partially informed by the objects of the Act as a whole which one sees in section 3 and in 3(a), the very first of the main objects of the Act is identified again by reference to the apolitical character of the public service:

to establish an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public –

So, we are seeking a body, the character of which is that it is able to perform its functions in an impartial and professional manner in order to efficiently and effectively service the government, the Parliament and the Australian public.

What that means, in our submission, is that individual public servants must carry out their functions in a manner unaffected by their own political beliefs and in a way where the people who are being served by the public service, the government, the Parliament and the public, can have confidence that that is what they are doing, that they are carrying out their functions in a way unaffected by their own political beliefs, unaffected by which party happens to be in power at any given time.

GAGELER J: Do we take 3(a) to be the purpose for the Lange analysis?

MR DONAGHUE: Yes, your Honour. I think the way we have put it is virtually identical.

GAGELER J: We do not need to go beyond the identification of the statutory purpose.

MR DONAGHUE: No, you do not, in our submission. Your Honours, if you go back to section 11, you will see following the statement of the APS values, that an obligation is imposed on the Commissioner, which is the Public Service Commissioner to:

issue directions in writing in relation to each of the APS Values

In subsection (2) it is said that:

For the purposes of this Act . . . the APS Values have effect subject to the restrictions (if any) in directions made under subsection (1).

Given that statutory context, it seemed to us helpful for your Honours to see what it is that has been done by the Commissioner pursuant to that obligation. And, your Honours, there are many spiral bound books now in this case, but your Honours hopefully have a book headed “Commonwealth’s Additional Materials” that has five tabs. The relevant direction that has been given under – insofar as it applies to value 10(1)(a), is behind tab 1 in that volume near the end. It is the last page of the volume. If you look at 2.2, subsection (1) deals with the imposition of obligations on an Agency Head and subsection (2) deals with the position of an APS employee:

In upholding the APS Value mentioned in paragraph 10(1)(a) of the Act, an APS employee must, taking into account the employee’s duties and responsibilities –

So there the Commissioner is, we submit correctly, recognising that the implementation of these values, what is required to behave in a way that upholds the values, is a variable standard that takes account of the employee’s duties and responsibilities within the public service. They must:

help to ensure that:

. . .

(b) the same high standard of policy advice and implementation, and the same high quality professional support, is provided to the elected Government, irrespective of which political party is in power and irrespective of the employee’s political beliefs.

GORDON J: Is that to say that none of these provisions target political communication?

MR DONAGHUE: Yes. They burden political communication. But, they certainly do not target it. Insofar as they burden it, in our submission, they do so in a particular way in order to promote a particular character of the APS which is not a character that requires public servants not to hold political opinions. So that direction is, in my submission, quite consistent with the reading that we submit your Honours would otherwise arrive at through 10(1)(a) and the objects of the Act, in particular.

Staying with the Act, the other indication that this Act is not envisaging a public service entirely devoid of political opinions is found in section 32 of the Act. This really ties in with my earlier reference to section 44(iv) of the Constitution because it is a legislative response to section 44(iv) as was made clear by Sykes, if it was not clear before – a public servant who fails to resign from the public service at the time that they nominate for election will be incapable of being chosen because the period of choice starts at the time of nomination and they will hold an office of profit under the Crown.

In order to deal with that scenario, section 32 contemplates – clearly assumes – that a person will resign if they want to seek election to the Parliament and then provides a statutory right to be reengaged by the public service, provided that the timeframes there set out are met in accordance with any applicable regulations.

The necessary inference from section 32 is that it is recognised that there is no reason why a public servant who seeks to participate in Australian public life by running for Parliament cannot do so. They have to resign, because the Constitution so requires it. But they can campaign, seek election, fail to be elected and then return to work for the public service thereafter.

And that, in and of itself, does not give rise to a problem with the apolitical character of the institution because if it did section 32 would not make sense. It is recognised that some public servants might want to engage in that kind of activity, and the Act responds to it. As to the phrase in section 13(11):

behave in a way that upholds –

in our submission, there are two important points. One is that the word “upholds” is itself inherently evaluative, it is much more nuanced than saying “must not breach”. The definition of “upholds”, which we have given in footnote 29 of our submissions, is to support, sustain, or preserve unimpaired.

So it is calling for a kind of behaviour that does not readily admit of totally bright lines, irrespective of the circumstances. And so, to that extent, we submit supports the nexus requirement to which I am coming. But also the phrase as a whole:

behave in a way that upholds –

contemplates, we submit, that it must be possible for behaviour to have an effect on the APS values, or on the integrity or good reputation of the APS. Because if it is not possible for the behaviour to have an effect of that kind, in our submission, the behaviour cannot be behaviour of a kind that fails to uphold.

So looking at that phrase as a whole, in our submission, it points rather strongly, in evaluating the operation of the Code, to the existence of a nexus between the behaviour in question and the effect that it has on the public service. That nexus, we submit, lies at the heart of a proper understanding of the way that this Code burdens the political communication of public servants.

We have sought in writing to draw an analogy between that kind of restriction and the equivalent restriction that exists in professional standards legislation with respect to legal practitioners. We have cited in footnotes 30 and 31 a decision in McDonald v Legal Services Commissioner Board.

Again, we have not given it to your Honours but the effect of that decision is that, when looking at whether or not there has been a breach of standards in relation to their discourteous communication or offensive or provocative language, the focus of the regulatory regime for legal professionals is on maintaining the integrity and reputation of the legal profession and, accordingly, the law limits free of expression in favour of that interest only for that purpose and only to that extent. That is what was held in McDonald.

We have similarly submitted here that the Code limits political communication by public servants only for the purpose of, there identified, upholding the APS values, its apolitical nature relevantly, and only to the extent necessary to achieve that purpose. That is, there is improportionality inherent both in the purpose of the provision and in the way it has been expressed.

EDELMAN J: Is that to say that the nexus is between the behaviour and the public service or the nexus is between the behaviour and the person’s position as an employee of the public service?

MR DONAGHUE: I would put it, your Honour, as being between the person and the effect of their behaviour on the public service. So, it does not have to be in their capacity as a public servant – and it takes into account their seniority, the mention that your Honour put to me, so that the behaviour of a departmental Secretary, in our submission, has much more capacity to affect the apolitical character of the public service than the behaviour of an entry level officer in a mail room or in a department which might have very little capacity to affect the character of the APS overall.

EDELMAN J: Is that not then to say that the mediating factor for the nexus is the person’s position as an employee of the public service?

MR DONAGHUE: That is one mediating factor but I am resisting saying it is the only one because there – one looks, in my submission, no matter who – how senior the person is one is looking at the question is your behaviour of a kind that can have an impact on the public service as an institution that fails to uphold its apolitical character.

GORDON J: Do you draw support for that submission by distinguishing the words of 13(11) from 13(1) to (4), which talk about an employee as an APS employee?

MR DONAGHUE: Yes, your Honour, and there are separate obligations.

GORDON J: In other words, 13(11) is dealing with a category of behaviour which is broader than just as an APS employee.

MR DONAGHUE: Absolutely, hence the “at all times” and hence the capacity for the person, in their own time at home, on their own computer, engaging in a racist tirade under a pseudonym, for example. Clearly not caught by the earlier provisions but captured by 13(11) and capable, even if the person is perhaps only a midlevel officer but the person engages in or works in – say, for example, a Centrelink employee who is interfacing with the public on a regular basis, including members of the public from all sorts of different socioeconomic and racial groups. That person might fail to uphold the values of the APS by engaging in such a tirade because they will reduce the confidence of the public in their capacity to interface with the APS in the delivery of services in a way that meets the standards.

I just started then to touch on the whole question of “at all times”. We do not seek to run away from the ordinary meaning of that language. In our submission, this obligation to behave in a way that upholds the APS values is an obligation that applies all the time, but that does not mean that it applies in an invariable way all the time.

It does not mean that it is not relevant, that the person might be, to take the whole possible spectrum, on television representing the department, speaking at a public event representing the department, working at their desk within the department, at a social function after work, at a family function, in the privacy of their own home with their spouse. In all of those different scenarios, the APS employee is subject to the obligation under 13(11). That is what the words “at all times” ensure. But that is not, in our submission, to deny the relevance of other contextual factors that have a bearing upon whether or not the behaviour in question fails to uphold APS values.

So, in our submission, it is virtually inconceivable – we cannot think of a context in which a statement made by a public servant to their partner after work at night could be to behave in a way that fails to uphold the APS values because you cannot reasonably get a nexus between something that somebody says to their partner at home and any impact on the APS as an institution.

So you can say what you like at home to your partner, but there are then as one moves further away from that core example, then it becomes necessary, in our submission, to look at other contextual factors, so that family gatherings might be one thing, but at dinner in a restaurant with a group of friends and lots of other people around, then it might be easier to see that there is a need to mediate one’s behaviour or one’s language or the particular topics that are the subject of communication in order to ensure that there is not any breach of the Code. That might be particularly true if one is having such a dinner party next to a table of journalists at a Canberra restaurant somewhere where it would be able to be seen that the ramifications of any statement made might well be magnified in a way that has rippling consequences.

Similarly, another nexus that I have not yet mentioned but in our submission is a very important one is the subject matter of the comment and its relationship to the person’s role within the public service. Comments about a person’s own department, a person’s own Minister, within the public service, in our submission, have much more capacity to fail to uphold the APS values because of the distinct possibility, just as a matter of commonsense, that people will assume that a public servant commenting on their own area will have inside knowledge or a particular special understanding of the way that things are working, such that criticism will be accorded greater weight than a public servant commenting on other areas of government policy but not immediately related to their own work.

Another important dimension to the question particularly relevant here in light of the AAT’s findings that I took your Honours to earlier is how the contribution is made. Contributions on particular topics that are made in the course of a courteous policy debate might have much less capacity to fail to uphold the values of the APS than abusive or vitriolic personal commentary.

So all of those are matters that we submit are able to be properly brought into account by asking a nexus question grounded in the statute by reference to the question: does this behaviour fail to uphold, have a capacity to affect, relevantly here, the ability of the APS to be apolitical – that is, to perform its functions in an impartial and professional manner?

There are two cases I am going to seek to take your Honours to that deal particularly with the question of regulating the private conduct of public servants. I note the time, your Honours. If that would be a convenient time.

KIEFEL CJ: The Court will adjourn until 2.15 pm.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Solicitor.

MR DONAGHUE: Thank you, your Honour. Can I complete my submissions about the significance of the words “at all times” in section 13(11) and the regulation by the Code of the private conduct of public servants by taking your Honours to two cases where the courts have considered that issue previously.

The first is the decision of Justice Finn in McManus v ScottCharlton [1996] FCA 1820; (1996) 70 FCR 16, which is in volume 5, tab 31 of the joint book of authorities. His Honour’s analysis has subsequently been referred to by this Court in the second of the cases that I will come to, but if we could start with McManus v ScottCharlton.

If your Honours turn to page 19 of the report you will see that the factual context in which the issue arose was that the applicant in that case confronted disciplinary proceedings under the then version of the Public Service Act which was the preceding version to that with which your Honours are now concerned and the charge concerned a wilful failure on his part to comply with a direction. Your Honours can see the particulars of the charge at about paragraph D on page 19:

you wilfully disregarded a written direction . . . that you refrain from contacting –

a female officer of the same department outside the requirements of his official duties and he breached that by making a personal telephone call to that officer.

The relevant version of the Public Service Act is set out starting at the bottom of that page, next to paragraph G. It was section 56. Paragraph (a) referred to wilfully disobeying a direction, which was the particular paragraph in issue there, but your Honours will note paragraphs (d) and (e), referring to:

improper conduct as an officer –

and:

improper conduct otherwise than as an officer, being conduct that affects adversely the performance of his duties or brings the Service into disrepute –

So the Act, as with the current Act, extended beyond things done as an officer to regulate private conduct of public servants. The chief object of the Act is set out at about paragraph E on page 20, in section 6:

to constitute a public service for the efficient, equitable and proper conduct . . . of the public administration of the Australian Government –

Then in the next paragraph you can see the formal direction to refrain from contacting the officer outside the requirements of official duties. The argument that was advanced was that set out back on page 20, at about paragraph F:

Put shortly, it is the applicant’s submission that the direction given him concerning Ms Bond, was not a lawful or reasonable direction because it was not related to the performance of his employment duties.

So the argument was that you could not give a direction that so extended. Justice Finn rejected that argument in emphatic terms. If your Honours turn to page 24 of the report, at the bottom of the page next to paragraph G, his Honour emphasised that:

public service legislation served – and serves –

what he called:

public and constitutional purposes as well as bare employment ones. This is not at all surprising given: (i) that such legislation provides for the marshalling of the human machinery to implement the exercise of executive power constitutionally vested in the Crown – and hence facilitates government carrying into effect its constitutional obligation to act in the public interest –

So that ties in with some of the submissions I made this morning about the constitutional foundations of the public service. Over the page at 25B, his Honour notes that:

From 1862, Australian public service legislation has imposed strictures and limitations upon the employment and nonemployment (or private) conduct and activities of public servants . . .

It seems clear that some number of these strictures and limitations were – and are – not designed merely to serve the purposes of the employment relationship as such. Rather, for reasons of governmental and public interest, their object includes securing values proper to be required of a public service in our system of government and, in particular, in maintenance of public confidence in the integrity of the public service and of public servants -

Going down to paragraph E on the same page, he notes:

Perhaps the most contentious illustrations of this legislative regulation of private conduct have been: (i) the changing supervision of the political activity of public servants (initially taking the form of a total ban –

as under the 1867 legislation but now – and there is a reference to some reports. There had been some loosening – and I will come to that history shortly. Then, near the bottom of the page, his Honour is making particular points about the:

enduring and legislatively backed “public interest” regulation of the private conduct . . .

Counsel for the applicant has submitted in contrast that the only binding directions which can be given a public servant are those related to – which have a nexus with – the performance of that person’s employment duties.

So, it is a different nexus to the nexus that I was identifying earlier between employment duties rather than effect on the public service. His Honour says:

In light of what I have said so far, this submission is untenable as a generalisation.

His Honour’s analysis was referred to with approval by this Court in the second case I want to come to, which is Federal Commissioner Taxation v Day [2008] HCA 53; (2008) 236 CLR 163, which is in volume 4 of the joint book of authorities at tab 25. The issue in this case, which was a tax dispute, was whether or not a public servant who was facing disciplinary charges was entitled to deduct the costs of the legal advice and representation that he incurred in association with answering those charges.

Your Honours will see at page 170, paragraph 5, the Commissioner contended, as it turned out, unsuccessfully, that looking at the question of whether or not those expenses of legal representation in answering the charges were incurred in gaining or producing assessable income the Commissioner said they were not because they were:

incurred in defending charges of conduct extraneous to the performance of the respondent’s incomeproducing activities -

It is the same version of the Public Service Act as Justice Finn was considering, which is set out in paragraph 6 – section 56 of the 1922 Act. There are some facts about the particular conduct that attracted the charges which you see through paragraphs 7 to 9. In effect, this officer was a Customs officer and had used his identification card to obtain access – presented it at a port to obtain access to a search warrant which had been executed in relation to his own work station at Customs and had represented, in effect, that there was an official inquiry to get a copy of that document. There were also charges related to manipulation of or a perception to obtain a diesel fuel rebate on behalf of the partner of another Customs officer.

Nothing particularly turns on those details other than that they were not in the course of the discharge of the officer’s official responsibilities. At the end of paragraph 33 of the judgment at page 180, in the last sentence of paragraph 33, the joint judgment of four members of the Court records that:

The essential difficulty with the Commissioner’s argument in this case is that it does not fully recognise the scope of the respondent’s role as an officer of the Public Service and what his office exposed him to.

The next two paragraphs then expand upon that difficulty:

The incurring of legal expenses with respect to charges . . . must be considered in the context of the special position which such an officer holds, the extent of the duty owed by the officer and the legislative provision for the enforcement and regulation of such duty.

Then their Honours quote Justice Finn’s statement about the public and constitutional purposes of the public service legislation from McManus - from the top of 181:

Such legislation facilitates government carrying into effect its constitutional obligations to act in the public interest. For reasons of that interest and of government the legislation contains a number of strictures and limitations which go beyond the implied contractual duty that would be owed to an employer by many employees. In securing values proper to a public service, those of integrity and the maintenance of public confidence in that integrity, the legislation provides for the regulation and enforcement of the private conduct of public servants -

again citing McManus in footnote (95). At the end of that paragraph there is then, again quoting Justice Finn, the reference to the finding that it was untenable as a generalisation to submit that there had to be a nexus with the employment duties of the public servants. Then in paragraph 35, noting:

The chief object of the Public Service Act 1922 was “to constitute a public service for the efficient, equitable and proper conduct, in accordance with sound management practices, . . . of the public administration of the Australian Government”.

Footnote (97) then says:

Similar objects are stated in the current public service legislation. Whilst it does not refer to the bringing of charges, it provides for a Code of Conduct and a range of sanctions consequent upon its breach: see ss 13, 28 and 29 of the Public Service Act 1999 (Cth).

So, obviously, the current provisions are identified as equivalent. It is said in the last sentence of 35:

The provisions relating to disciplinary action were referable to the maintenance of those standards of conduct.

So, in our submission what we take from that, both McManus and Day, is that this Court has accepted in the past that public service regulation that extends beyond regulating the employment activities of the public service, to extending to imposing obligations on public servants in their private capacity in order to maintain integrity of and public confidence in the public service is a perfectly legitimate thing for public service legislation to do. That is all one sees in section 13(11) and its words “at all times” and it is just the modern equivalent of the regime there considered and recognised by the Court as serving legitimate public interest.

Our submission then, as a matter of construction as to the operation of these provisions, is that sections 13(11) together with 10(1) should be construed and this much appears at least to be common ground as directing attention to whether there is a nexus between the conduct that is alleged to fail to uphold the Code and damage to the capacity of the APS to discharge its apolitical role with integrity and effectiveness.

We say as well that that object is pursued by the Code only for that purpose and to that extent. So properly construed, the conduct does not fail to uphold the relevant APS values unless it is conduct of a kind that fails to uphold the capacity of the APS to discharge its functions in that sense.

Where that takes us, in our submission, is to the submission we put in writing in paragraph 22 of our written outline, which is that it produces a set of obligations that is context dependent and the application of which requires an evaluative judgment as to whether or not the conduct in question does uphold those values and the integrity and good reputation of the APS.

We identify four particular factors as bearing on that evaluative judgment, and I have mentioned them in passing, but to do it in a more structured manner we say, in particular, it directs attention to first, the characteristics of the person engaging in the conduct, including particularly their seniority within the APS; second, whether the relevant conduct concerns commenting on the policies of the person’s own Department or Minister or is concerned instead with matters about which the employee does not have direct duties or responsibilities; third, when and where the communication is made across the spectrum from on television to at home in private; and, finally, fourth, to the manner in which the conduct occurs – is it personal criticism of a combative or vitriolic kind at one end of the spectrum or academic or informative policy debate at the other.

All of those matters, in our submission, need to be taken into account in evaluating whether or not particular activity by a public servant is behaviour of a kind that fails to uphold the relevant value.

EDELMAN J: Just to be clear about the nexus, it is the nexus with the APS generally that you are speaking of?

MR DONAGHUE: Yes.

EDELMAN J: What words, then – what emphasis then, or function, do the words “in performing its functions” serve in 10(1)(a)?

MR DONAGHUE: In my submission, one is looking at the APS as an institution and considering the impact of the conduct in question on the capacity of that institution to perform its functions in an independent or impartial manner. Plainly, it is performing those functions through particular officers. So if, for example, an officer engages in conduct of an overtly and highly partisan kind against the activities of the current government, then that behaviour, quite independently of any effect it may have reputationally on the APS, will impair against the public servants or a department or Minister in this example – will impair the capacity or the willingness of the Minister to trust that part of the Department with giving advice on sensitive areas with implementing policies of the government.

EDELMAN J: Just to give a more concrete example based on something that you said earlier, a person, a lowlevel employee who works in the mailroom – could anything that that employee says, however vituperative, impact upon the performance of the functions of the APS or the perception of the apolitical nature of the APS in performing its functions?

MR DONAGHUE: For someone at that level, it is difficult to think of examples of something that they say having that effect. But, it could be the case that things that they do have that effect – so if, for example, they say in order to make life difficult for the government who I hate, I have been destroying some of the correspondence that comes through so that they never respond and people get upset with them in that way, yes, it would have that effect – but, short of something of that kind. So, I in no way deny that the level of the person within the APS is an important criterion in the judgment that we submit needs to be made. But, it is not the only one.

KIEFEL CJ: Might it also depend on whether or not the capacity in which they spoke was made evident to those receiving the communication?

MR DONAGHUE: Yes, I accept that that is so as well. But, again, it will not always matter. If the Secretary of the Department says, I am now speaking in my personal capacity, and you should understand it in that way, and then launches into an attack on the government, that will not help in terms of the contravention of the Code.

As against that evaluative task that we identify, the respondent and the Tribunal below sought instead to draw a very bright line around what they called “anonymous conduct” and to say that, irrespective of any other factors, if the maker of a particular communication was anonymous then that is the end of it, there cannot be a contravention of the Code.

We submit that your Honours should reject any such bright line for at least three reasons. The first and most important reason is that, as emerged in debate this morning on the notice of contention point, the respondent’s concept of anonymity has as a critical component of it a temporal dimension. So that they say that as long as you are anonymous at the moment that the comment is made, the comment can have no effect on the APS.

One sees that argument appearing repeatedly in writing, particularly at paragraphs 17, 26, 27 and 47 of our friend’s written outlines, but Mr Merkel, as I recall, emphatically agreed, in response to some questioning from the Bench, that that was a critical component of the respondent’s concept of anonymity.

Adopting that approach, it follows that a public servant who says something very critical of the government or a minister, or the public service or their own department is immune from any sanction under the Code provided that they could not be identified at the time, even if, quite shortly after the statement is made they are identified as a member of the public service.

That is so, and we submit, particularly problematic because in circumstances where a comment is made anonymously that may well be because the very reason for the anonymity is because the content of the communication is of a particularly damaging or extreme kind or of a kind that the person knows they should not be making under cover of or attributed to their own name.

We submit that the problems with that in terms of the ramifications for the APS are very marked because not only might the comment itself be very damaging to the apolitical character of the APS but the damage might be compounded by the fact that, in response. So the person has to be allowed to stay there in their notwithstanding what has been said, no action can then be taken against the speaker public service position because you cannot take action against them under the Code because they were anonymous at the time that the statement was made.

So, to take the example from our written submissions, the racist tirade on the bus where there is no one on the bus who recognises the person as a public servant but the next day the front pages of the newspapers say the person who engaged in that racist tirade on the bus is a midranking level of the public service, that person continues to be employed in their position in the public service, discharging their responsibility because nothing can be done about them because they did not contravene the Code. That can only create an impression that there is condoning of the behaviour that occurred, magnifying the damage beyond the initial damage done by the conduct of the public servant to a sense of acquiescence or acceptance of the behaviour that occurred.

The subsequent outing or discovering of anonymous tweeting or behaviour is in no sense a hypothetical concern. Your Honours may or may not recall a practical example that emerged last year in Victoria where a senior police officer who was the head of the Victorian Ethical Standards Department was found to have been engaging in very offensive tweeting under a pseudonym.

None of that was known at the time that it occurred, but when it was worked out that the person who was engaged in the very offence of tweeting was a senior police officer in the Ethical Standards Division of the Victoria Police, their position became untenable because of the damage it does to Victoria Police to have someone who holds those views and engages in that behaviour in a senior position within the police force.

So our submission is that it is not tenable for our friends to hold a line at the temporal place they seek to do in defining anonymous conduct as having no impact on the APS, unless it is immediately attributable to a public servant.

KIEFEL CJ: Mr Solicitor, just a side question from the temporal aspect upon which the respondent relies – given the constitutional purpose which underpins the implied freedom, is it possible to have a political communication which is anonymous? I have taken you a little

MR DONAGHUE: No, I am

KIEFEL CJ: Perhaps you might like to think on that. There may be nothing in it, but I wondered – I had in mind an old case, of course.

MR DONAGHUE: Yes.

KIEFEL CJ: Smith v Oldham.

MR DONAGHUE: Yes, indeed. It is certainly not possible to have that, yes, political communication in that particular context that is anonymous.

KIEFEL CJ: Yes.

MR DONAGHUE: But in others. But in some ways, that really takes me to my next point, Chief Justice, is that one of the difficulties with the whole concept of anonymous communication in this area is that we are concerned with provisions of the Code that create standards with sanctions for possible breach of those standards. But in the real world, no one could ever be sanctioned for breach of the Code if they remain anonymous.

It only becomes an actual issue in the real world at some point, if the identity of the person who engaged in the relevant communication is ascertained because it is only at that point that any of these provisions with which your Honours are now concerned ever become practically material. That rather highlights the fact that to talk just about an anonymous communication, without adding a temporal dimension to it, is quite artificial because at some point, perhaps well after the events, there must be a nexus drawn in order for these provisions ever to be engaged.

It is not the case, for some of the reasons I gave in answer to Justice Edelman’s question earlier, that one is concerned here only with public reputational damage. One is equally concerned with the confidence of the ministers of the day to rely upon the public service, both to give advice and to implement policy decisions.

So that even if identity is only revealed as a result of an investigation that takes place, or as a result of a dobin or in some other way, once the identity of the person is known the damage to the public service caused by the behaviour, perhaps behaviour that occurred quite some time in the past, is manifest and it may at that point be necessary to take action under the Code in order to alleviate the harm in the way that I have sought to identify.

To an extent, the force of that – I withdraw that. The next difficulty with the brightline concept of anonymity is that it does not deal with the problem that a person’s identity may be known in a different way to different groups. So it might be known to a core group of friends, suspected by a wider group not known at all to the public at large and, to some extent, that problem is illustrated by the fact of the respondent’s own case because as I took your Honours to earlier, within her immediate workplace, which were some of the targets of her criticisms, there was a screensaver or a desktop image and the name of the Twitter handle displayed for anyone to see.

So it is not clear whether knowledge to that group – it was one of the groups affected by the tweeting – is enough to stop someone being anonymous within the bright line that the respondent invites your Honours to draw or not and, if not, why not? Similarly, if a public servant tweeted and said, “I am a public servant with the Department of Home Affairs” but did not go any further, then is that person anonymous or not?

So, in our submission, there is very real difficulty with the attempt to draw a hard line that excludes any behaviour that is anonymous in some way but cannot be defined by reference to anything that you see in the text of the Act. There is just no textual foundation for drawing a sharp dividing line where anonymous behaviour is permissible irrespective of any other factors and, for all of the reasons that I have sought to identify, not only is it textually unsupported, but it is likely to be unworkable in practice and to fail to achieve the objectives of the Code.

Ms Banerji, in our submission, should have understood all of that because, consistently with the submissions that I have been making, the Public Service Commissioner had issued policy guidance that is, in my submission, entirely consistent with what I have just been putting to your Honours, and that was policy guidance to which Ms Banerji had access. In the end, the question of whether she understood it or not is not really directly in play on the issues before the Court.

But your Honours might have noted in reading the AAT’s reasons from 23 through to 26 that there is an extract there from the relevant part of the Public Service Commission’s guidance. It is identified at paragraph 37 as Circular 2012/1. That was an amendment to an online manual that provided guidance as to the operation of the whole of the Code of conduct, but this is the part that deals with commentary, including online commentary and I will not take your Honours through it, but is quite clear from the guidance that the Public Service Commission has given that their understanding of the way that the Code operates is that it does not prohibit APS employees from making public comment on any sort of absolute – in any absolute way.

It identifies what are called general principles, from the bottom of 23 over onto page 24 of the core appeal book, identifying some of the factors that bear on the evaluation in the Public Service Commissioner’s view. So you will see in the middle of the page:

It is quite acceptable for APS employees to take part in the political life of their communities . . . ‘apolitical . . . 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.

There is specific guidance given on pages 25 to 26 around online participation. It is mentioned in the middle of page 25 that there are some additional considerations. It is said right in the middle of the page at the end of the paragraph:

The same principles apply to online comment as to any other kind of public comment – as do the APS Values and Code of Conduct.

Then there are some additional factors about speed and reach of online publication and possible replication of it that are mentioned. Then, over the page on 26 in the middle:

APS employees must still uphold the APS Values and Code of Conduct even when material is posted anonymously, or using an ‘alias’ or pseudonym, and should bear in mind that even if they do not identify themselves online as an APS employee or an employee of their agency, they could nonetheless be recognised as such.

Two paragraphs down:

As 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.

As your Honour Justice Nettle put it earlier, the advice is in posting anonymously you are both taking a risk that you will be exposed and creating a risk that you will be exposed and that is the behaviour that fails to uphold the values.

GORDON J: That is an obligation which is brought to their attention before they are employed and which they, therefore, consent to.

MR DONAGHUE: Yes, we submit that that is so.

GORDON J: Is that relevant on the nature and extent of the burden?

MR DONAGHUE: Is that relevant to – yes, it is, and I will come to that on the justification phase but that is particularly a feature of the Canadian case law on this issue to which the Tribunal referred and we do say entering into the public service has privileges and responsibilities and carries with it an acceptance that because one is accepting employment with an apolitical body there are restrictions that are accepted in that way.

GORDON J: So, when one is looking at the nature and extent of the burden one says not only is it not directed at political communication but it is directed to – not the public at large, it is directed to APS employees and directed not only just to APS employees in reference to all communication but communication which has the effect you have described.

MR DONAGHUE: Precisely, your Honour, entirely embrace that.

GAGELER J: Do the guidelines have a statutory basis? Is this section 11?

MR DONAGHUE: No, this is not section 11, so the document I took your Honour to earlier has the statutory basis in section 11 then sitting under that there are policy guidelines and the Tribunal referred to these in a Drake sense as just policy guidance so I do not seek to – I certainly do not seek to control the interpretation of the Act or influence the interpretation of the Act by reference to the guidelines. I am simply noting that the AAT below drew attention to them and what they say accords with the construction of the Act that I have arrived at independently of the content of the guide.

GORDON J: What about the directions, do you rely on those?

MR DONAGHUE: I do rely on the directions, yes.

GORDON J: Which are subject to the regulations.

MR DONAGHUE: Well, I think, not regulations, your Honour. They are directions made under section 11 of the Act but section 11 of the Act both requires them to be made and says that the values operate to the extent of inconsistency so

GORDON J: I thought the regulation required that any APS employee to inform themselves of the Act, the regulations and the directions.

MR DONAGHUE: I am sorry, your Honour. Yes, I think your Honour is correct, yes. That is all I seek to say by way of submissions in relation to the nature and extent of the burden that arises from the provisions. If I can then move to step two and the question of whether the purpose of the law is legitimate in the sense that it is compatible with the main instrument of the constitutionally prescribed system of representative and responsible government.

I have already identified what we say the purpose is in terms reflective of section 3A of the objects of the Public Service Act. We have added to those objects the words at the end “and maintaining public confidence in that service”. That, in my submission, is consistent with the kind of analysis one sees in Justice Finn’s reasons in McManus and in this Court in FCT v Day. But, in the end, nothing turns on whether those words are included or not because, in our submission, it is implicit in the notion of an efficient and effective public service that there is public confidence in that service.

It does not appear to us that there is any dispute between the parties that that purpose is compatible in the question 2 – in a stage two sense. The respondent seems to accept that the purpose is legitimate but then asserts that the Commonwealth cannot regulate conduct with no bearing on the APS as to which we say we agree and we do not purport to have done that.

We do note in support of the compatibility of the purpose, that the purpose that we identify is consistent with the operation of Public Service legislation in this country since Federation. I do not propose to detain your Honours at any length on this topic. We have dealt with the history at paragraphs 30 to 34 in our written submissions and I rely on that. For most of the relevant period, the restrictions were found in regulations made under the Act and we have identified the relevant regulations and the statutory provisions there.

All I seek to add to that, by way of oral submissions, is that there was a strict restriction on public comment by public servants, stricter than the restriction that I identify in the Act now for the entire period from Federation up to 1987. In 1987, there were amendments to the Public Service Act that substantially wound back the restrictions on public comments by public servants. Our friends, in writing, make quite a great deal of the significance of those 1987 amendments in removing that prohibition on public comment by public servants. At that period, the legislation was wound back to focus more on duties of employment of the Public Service and on not disclosing confidential information.

In our submission, your Honours get nothing whatsoever by way of assistance from the 1987 amendments for this reason – that when the current legislation was being developed, there was an extensive review and consultation process, the product of which is found in a document I will take your Honours to – it is in volume 9, tab 54 of the joint book of authorities. It is a 1997 report headed “The Public Service Act 1997 – accountability in a devolved management framework”. If your Honours, when you get that, could turn to page 6, which, on the page numbers in the book, page 3999, you will see from the top of the page the report stating:

Equally important, the Act will establish new accountability mechanisms to ensure that Parliament–and the Australian people–can ensure that these values are being upheld.

These are the new APS Values.

The Public Service Commissioner will audit . . .

The new Act will remedy a number of serious deficiencies and omissions in the current legislative framework. In the existing Act:

Relevantly, the third bullet point down:

there is no acknowledgement of the need for a nonpartisan and apolitical public service -

and then, three bullet points down under that:

there is no code of conduct -

Then under the bullet points:

It is proposed that the new Public Service Act address these shortcomings, establishing in Commonwealth legislation the distinctive character of public service.

If your Honours also go back two pages to page 4, the bottom of the page, you will see it – the last paragraph:

It is proposed that the new Act will recognise the distinctive ethos of Australia’s public administration and Parliament’s expectations of the public service. The public interest in maintaining public service integrity and professionalism will be met by the obligations relating to: a core of statutory Values, encompassing qualities such as political impartiality, high ethical standards . . . a code of conduct -

So, in our submission, to focus, as our friends seem to invite your Honours to do, on legislative history in 1987, to construe a different Act enacted 12 years later against a background of identified serious deficiencies in the previously existing model, is to take your Honours through a process that is of no assistance. It is not open to read the 1999 Act as continuing, in some way, the model in 1987, which was itself a departure from what had happened in the 87 years previously as summarised in our written submissions.

Relatedly, your Honours will have seen in the – as I understand it, your Honours, the Human Rights Commission has been given leave to intervene to make written submissions.

KIEFEL CJ: That is correct.

MR DONAGHUE: One of their written submission - and this is paragraphs 27 through to 32 - draws on a body of United States case law to advance the proposition that there is a special value in political communication by public servants. In our submission, that contention cannot really be squared with the way that public servant political communication has been treated in Westminster systems of governments, certainly in Australia. So that one sees since and this is again dealt with in our submissions in writing, but since 1862, when Victoria was the first English speaking jurisdiction to pass public service legislation, it passed legislation and had regulations made under it that totally prohibited public comment on any governmental matter by public servants.

That prohibition extended through to the Commonwealth level in the various forms of Act that extended up until 1987. So the proposition that there is special value sits rather poorly with a prohibition on communication of the kind that is said to be specially valued. The tradition in the United States appears to have been a different one.

Can I turn then, your Honours, to the third stage of the McCloy/Brown reasoning, or the second stage of Lange, the question of justification. As we understand it, there is not any debate between us that there is a rational connection between – and suitability between the public service provisions with which your Honours are concerned and the legitimate purpose that we have identified. If there is a debate about that, I propose to leave it to reply – because I do not understand the parameters of that debate, if there is one.

In relation to necessity, where your Honours have held in McCloy and Brown the question is whether there is an obvious and compelling alternative reasonably practical means of achieving the same purpose, the only such alternative that is identified in the written submissions is an identical regime that excludes anonymous conduct.

In our submission, that does not meet the necessity criteria, because such a law would be radically different from the current provision because far from achieving the purposes achieved by the current regime and the evaluative inquiry that they require, there would be an area of total immunity for any communication made where the speaker was not immediately identifiable and that would create such a gaping gap, to be used by any public servant who wanted to engage in political comment, that it would mean that the regime would not be effective perhaps at all – and certainly not to the same extent as the existing regime in advancing an apolitical public service.

In our submission, what one sees in the provisions of 10, 13 and 15 is a regime that needs to grapple with the fact that the persons who are regulated by the Public Service Act are a very large group – I think there was evidence of nearly a quarter of a million people – in relation to a whole range of different APS values set out in section 10, with a range of different Code of Conduct obligations set out in section 13, and a range of different possible sanctions set out in section 15.

That regime is a regime that gives a very wide scope for decisionmakers, the agency heads or their delegates, to make highly contextspecific decisions about whether particular behaviour contravenes particular standards and if so warrants particular penalties. It is difficult, in our submission, to see how a regime could be created that would cater for all of those complexities, and for the wide range of possible scenarios that might be thrown up, that did not involve fairly broadlystated standards of the kind one sees in the current regime. In our submission, nothing has been identified that would suggest that there is an alternative regime, certainly not of an obvious and compelling kind, that would achieve the identified objective to the same extent.

As to adequacy of balance, we point to four matters. The first is the point I have already mentioned by way of history, that the balance that has been struck has certainly, for most of the history since Federation, been stricter than the balance that one sees now. The fact that there is regulation of the political comments of public servants is certainly not a feature that has hitherto been regarded as incompatible with our system of representative and responsible government.

To the contrary, it has been identified, as Justice Finn explained and as this Court endorsed in Day - it has been seen as playing an important part of upholding the apolitical public service for the implementation of the executive power of the Commonwealth.

The second reason it is adequate in its balance is the same reason I just identified – necessity - that this is a regime that calls for decisionmaking in a range of circumstances operating on employees at a range of different levels having engaged in a range of different kinds of conduct. In that respect, I would invite your Honours to turn briefly to the decision of the Full Court in Chief of the Defence Force v Gaynor which is in volume 4 behind tab 22.

The reason I am taking your Honours to this case is that, like the present matter, it was a disciplinary proceeding against a person as a result of their public comment, in that case Mr Gaynor who was a major in the Army Reserve. Your Honours can see at paragraph 7 on page 301 reference to:

Part of the enforcement of discipline within the command structure was . . . instructions and policies concerning public commentary by ADF members, including . . . social media.

There was a social media policy that said:

Defence personnel must not post material that is offensive towards any group –

Mr Gaynor did post material, contrary to that requirement, and was disciplined as a result. If your Honours turn then to page 323 at paragraph – so, without taking your Honours right through it, what happened was the Full Court found that the primary judge had erred, as I mentioned earlier this morning, by analysing the Lange question at the wrong level, by analysing it at the level of the decision instead of the statute.

Having found that error, their Honours then embarked on the task of analysing the validity of the statute at the right level, and this part of the judgment is their own consideration of the validity of the impugned provision which was regulation 85 of the Defence Force Regulations which was expressed in very broad terms. I passed over the provision, but if your Honours want to see its text, you will find it at page 308, paragraph 37. I think that where the text of the provision is set out.

But in applying the Lange analysis to regulation 85, the Full Court in a unanimous judgment of the Court accepted that, notwithstanding the breadth of the discretion that it accorded to decisionmakers in making disciplinary decisions, the regime was nevertheless compatible with Lange and I will not read your Honours the analysis, but it is paragraphs 106 to 108 in particular and at 107 your Honours will see, about halfway through the paragraph:

Broad discretions of the kind for which reg 85 provided, covering a multiplicity of circumstances, and leaving the merits of each case for the judgment of the repositories of the power . . . within the bounds of Australian law, satisfy the concept of necessity as explained by the plurality in McCloy.

Then the next paragraph is adequacy of balance. In our submission, those same remarks are apt to the Code.

The third reason that we submit that the regime is adequate in its balance concerns the procedures that have to be applied before sanctions can be enforced as a result of any finding of breach of the Code and it is here that I need to briefly refer to the transitional provisions that applied as a result of the amendments that were made commencing 1 July 2013.

So, in the bound volume of Commonwealth additional materials which has five tabs, your Honours will have the transitional provisions behind tab 2 and if your Honours then turn to item 23 which is on page 67 of the print, there is a number 41 in the middle of the page at the bottom, you will see the transitional provision that deals with the scenario where there is – before the commencement time which is 1 July 2013, a finding that the APS employee has breached the Code of Conduct:

but no sanction had been imposed -

which is the position here in relation to Ms Banerji. What subparagraph (2) then says is:

The Agency Head must determine the sanction (if any) . . . in accordance with the procedures established under paragraph 15(3)(b) of the new Public Service Act.

But the reference to the Code in those procedures is to be read as a reference to the old Code. So, the agency heads were required to put in place procedures under 15(3). That was done with effect from the commencement of the new Act on 1 July 2013 and the transitional provision requires reference to those procedures but applying the old Code of Conduct. It is that transitional provision that means that the documents behind the next tab in the same folder behind tab 3 means that this is the procedure that had to be followed in applying a sanction for breach of the Code.

There was an equivalent procedural document in place previously but I draw your Honours’ attention to this for the following reason, that under this regime we submit that the scheme is adequate in its balance not only because the determinations that are made have to be made pursuant to a generally applicable procedure that you see set out here which is known in advance to relevantly affected persons that provides for the provision of procedural fairness which you will see particularly in 2.4 and 3.2 and where reasons have to be available which you will also see particularly at the bottom of 2.3.2 with respect to breach decisions and 2.5.

So, it would have a requirement for procedural fairness including provision, as you see at 2.4, details of suspected breach, proposed decision, evidence relied upon, sanctions that may be imposed, the provision of a reasonable opportunity to respond - reasons at the end of all of that and then the availability of both merits and judicial review. I will not take your Honours to the provisions that provide for merits review. You can see them in footnote 64 of our submissions is where they are identified. Of course, there is judicial review.

All of that we submit is significant because not only does this regime call for an evaluative judgment but it then ensures fairness to people who are found through that process, or before people are found to have breached the Code, and capacity for external review of any decisions that are made. All of that, in our submission, points to the idea that the regime that has been created adequately balances the objectives that I have already identified with the possible impact on freedom of speech.

GAGELER J: Mr Solicitor, are we concerned with the Code of Conduct procedures at their own level or at the statutory level that requires them and implements them? Really I am asking: are we just going to this document at tab 3 by way of illustration or are you seeking to get something more out of it?

MR DONAGHUE: No. I am just going to it by way of illustration because your Honours are concerned with the validity of the Act. I am illustrating both the procedures and emphasising the availability of merits in judicial review because that was part of the reasoning of the Court in Wotton in actually disposing of the case - the Court emphasised that the particular conditions on the parolee, on Mr Wotton in that case, were conditions imposed pursuant to statutory powers where there was judicial review available to ensure that the limits of those powers were not exceeded. That was a matter that was emphasised by the plurality at paragraph 32 and by your Honour the Chief Justice at paragraphs 88 and 91.

KIEFEL CJ: But was that by way of distinguishing between the question on a constitutional nature and that which falls for determination under review? Did it go any further than that?

MR DONAGHUE: In my submission, yes, your Honour, because having identified the questions in the way that I have taken your Honours to already, part of the if your Honours would go to Wotton, volume 8, tab 43, and turn to page 16, paragraphs 31 and 32, this is in the part of the judgment where the plurality is assessing those statutory provisions against the Lange test and in assessing them against the Lange test, one sees for example at the end of 32 the fact that the statute used:

The phrase “reasonably considers necessary” . . . is akin to the phrase “reasonably appropriate and adapted” for the second Lange question. Again, it would be incumbent upon the Parole Board to have regard to what was constitutionally permissible, and the reasoned decision of the Parole Board is judicially examinable -

So as we read it, the Court was, in applying the second limb of Lange, according significance to the fact both that the decisionmaker had to have regard to criteria akin to the Lange criteria and that there was judicial enforcement to ensure that the boundaries of that were not overstepped. I have read your Honours 32, but 31 might be even clearer because there is a reference in the middle of 31

KIEFEL CJ: What about 33?

MR DONAGHUE: The first sentence of 33, in my submission, is saying the statutory provisions are valid and therefore the only question could be was the exercise of those powers within limits or not, and that was the issue that was not before the Court in Wotton.

KIEFEL CJ: I seem to recall the fact that the plaintiff had not sought judicial review was pointed out on a number of occasions.

MR DONAGHUE: Yes, indeed, and that is why I said it was not before the Court. Once the Court got to the conclusion in the first sentence of 33 that the provisions comply with the constitutional limitation, the questions of validity were just questions about statutory ultra vires and they were questions for the Supreme Court, hence the balance of 33.

But in 31 and 32, as we read them, there is reliance upon the restraint of power requiring a reasoned decision of the Chief Executive, judicially examinable under the Judicial Review Act, as part of the reasoning that supports the validity of the statutory provisions themselves when assessed against the second limb of Lange.

GAGELER J: Are we still dealing with your question 1?

MR DONAGHUE: Yes. I am nearly finished, but, yes.

GAGELER J: We seemed to have slipped from the way you were initially putting it which is to look at section 13(11) and we seem to be taking into account section 15 as part of the analysis already.

MR DONAGHUE: I think, your Honour, that that is a fair comment and that the submissions that I have just made – because they do bring in section 15 – would only assist your Honours if you are on the alternative way we put question 1. If section 15 is out of count entirely, then I do not need any of what I have just said and I apologise for blending the structure of those submissions.

The last thing that I seek to say in relation to the main way we put question 1 is – in an abbreviated fashion – to return to a question your Honour Justice Gordon asked about acceptance of this burden by public servants by taking on their positions within the public service. I mentioned that this had been a point reflected in the Canadian jurisprudence. I think the most efficient way to do this is to ask your Honours to go back to the Tribunal’s reasons in the core appeal book at 58, paragraphs 108 and following. Sorry, your Honours, no, those page references are wrong.

Could you go instead to page 48 of the core appeal book? From 48, and across 49, the Tribunal is dealing with the leading Canadian decision of Fraser v Public Service Board where the Supreme Court was examining a case involving public comments by a senior public servant in Canada which had resulted in Mr Fraser being warned and then sacked. Again, I will not go right through it, your Honour, but the passages quoted are material to the issues now before the Court – particularly in the middle of page 48:

There is in Canada, in my opinion, a similar tradition surrounding our public service. The tradition emphasizes the characteristics of impartiality, neutrality, fairness and integrity.

All equally true here:

A person entering the public service or one already employed there must know, or at least be deemed to know, that employment in the public service involves acceptance of certain restraints. One of the most important of those restraints is to exercise caution when it comes to making criticisms of the Government.

We similarly rely on 81 and 82 as relevant to this issue because, in assessing the adequacy of the balance – as Justice Gordon put to me a little time ago – one relevant factor is that this is not targeting political communication and it is not applying to the community generally. It is applying to a particular limited class of public servants who, in the way described in Fraser, have accepted some level of restriction upon their capacity to engage in criticism of the government.

GAGELER J: Mr Solicitor, in Fraser, within the quote that appears on the following page from the one you took us, paragraph 41, there is use of this word “loyalty.” Is that quite the right way to put it?

MR DONAGHUE: No. One sees that language throughout the Tribunal’s reasons as well. It seems, in my submission, to arise in this way, that in addition to the statutory obligations under the Code of Conduct, which have the history I have referred to in Australia, there is also in some of the cases references to the ordinary duty of fidelity and loyalty that an employee owes to their employer and that concept is sometimes deployed in the cases as an equivalent route, or as an alternative route to the same kinds of obligations.

Justice Finn in the Bennett Case, which is mentioned in writing, dealt first with the Public Service Act and regulations, and then later in his judgment explored the question of – indeed, in response to an alternative argument the Commonwealth had put about fidelity and loyalty. That reasoning is quoted by the Tribunal. Then in fact for much of the Tribunal’s reasoning, they refer not to the obligations under the Code, but to the obligation of fidelity and loyalty as the flipside of – that is not a good way of putting it. But the competition is characterised as a competition between freedom of speech on the one hand, treated as a personal right, and the duty of fidelity and loyalty to the employee on the other hand.

The reason I say that is wrong is it leaves out of account the constitutional dimension of the public service legislation that was identified in McManus and in Day, that is, the interest in protecting the apolitical character of the APS as an institution goes beyond anything that one would see in the duty of fidelity or loyalty.

GAGELER J: Or even more than that. There may be a difference in concept between impartiality and professionalism on the one hand, and fidelity and loyalty on the other.

MR DONAGHUE: Yes. Well, I accept that that is so as well. If loyalty were to be deployed in this context at all, it is not loyalty to the governing political party, it is loyalty to the APS as an apolitical institution. Unless one understood it in that way, it would be quite inapt.

GORDON J: Do you need any reference to these authorities, given the structure of the way in which the statute works, sitting within the constitutional framework? I mean, the provisions are set out, are they not?

MR DONAGHUE: I do not need them. In my submission they support what I am putting, but I do not need them and I have finished with them. I am not proposing to detain your Honours any further on them. Nor do I need, I think, to say anything further about the alternative submission on question 1. The only real difference between the main submission on question 1 and the alternative is that section 15 forms part of the alternative, so that if the sanction decision is part of the burden then we are into the territory of the alternative. That is what brings in the Wotton argument as Justice Gageler pointed out to me before.

In essence, our submission on this is that as a matter of the ordinary construction of the discretion conferred by section 15, that discretion has to be exercised reasonably, in accordance with ordinary principles, and particularly in the context of it serving a role analogous to a sentencingtype role, albeit that sentencing is punitive and here the regime is protective of the public service values.

But on ordinary principles, with a power of that kind, it would need to be exercised proportionately so that the sanction imposed is proportionate to the conduct. That obligation exists as a matter of construction. It is enforceable by merits and judicial review in the ways I have already identified and, accordingly, even if section 15 is part of the burden, nevertheless, it is a burden imposed in pursuit of the same purpose and it is justifiable for all of the same reasons that I have already addressed plus that one additional reason.

So, that on either of those routes, in our submission, your Honours should conclude that this regime, in all of its lawful applications, does not impose an unjustifiable burden on political communication and, therefore, it is valid.

EDELMAN J: I had understood your alternative submission to be a section 15Atype submission. Is what you are putting now that the alternative submission really is just an ordinary matter of interpretation to read any discretion as a discretion which is exercised by reference to concerns of reasonableness or proportionality?

MR DONAGHUE: Your Honour, we have, perhaps confusingly, three submissions. Question 1, we have two arguments and then the third is - the submission I was just addressing was the second part of our question 1 submission

EDELMAN J: I see.

MR DONAGHUE: Which is not 15A and then the last submission is the – which is somewhat akin to 15A, but for reasons I am about to come to, slightly different. But, your Honour is right, that the last part of our case is about confining the discretion. That is not what I was just putting a moment ago. But on either approach to question 1, your Honours do not get to question 2. You would find sections 13(11) paired with 10(1) and 15 if necessary, valid in all of their applications.

It would therefore follow that a decision that was authorised by those provisions could not have failed to be reasonable administrative action taken reasonably because of the implied freedom and therefore the only issue argued before the AAT had to be resolved favourably to Comcare and that is sufficient for the appeal to be allowed.

If your Honours are against us on everything that I have advanced so far, then that takes us to the second way that the case is put. The premise for that is that properly construed it would appear that but for the principle of construction I am about to come to, a decision that was authorised by the relevant statutory provisions would be capable of imposing an unjustified burden on political communication. That is the premise, and the question is then how does one deal with the fact that the discretion appears to be capable of authorising a decision of that kind.

That is the topic that Justice Brennan addressed in quite some detail in Miller. If I could ask your Honours to go to Miller [1986] HCA 60; (1986) 161 CLR 556 in volume 5, tab 32. It is a preCole v Whitfield section 92 case, so aspects of the analysis would not now survive. But on the relevant point, if your Honours start at page 593, which is the commencement of Justice Brennan’s judgment, you can see that the issue arose in the context of there having been transmission stations erected at places between Sydney and Brisbane for the purpose of transmitting television images between those two places, which had been erected and maintained and used without the authorisation that was required under the Commonwealth Act.

It was said in defence of the person who had constructed and was operating the transmission stations that section 92 protected their capacity to do so. The legislative regime set out by his Honour on the second half of page 593, there are three relevant sections:

Section 4(a) of the Act confers on the Minister “the exclusive privilege of establishing, erecting, maintaining, and using stations . . . Section 5 empowers the Minister to grant licences to –

other people to do those things and section 6 said:

“Except as authorized by or under this Act, no person shall –

do those things. So, it was a prohibition and licensing regime where absent a licence the relevant activity could not lawfully be engaged in. That is how his Honour described it at page 611 in the middle of the page. His Honour said that you could not properly view it as intended to create a monopoly for the Minister that was just a licensing regime and, therefore, the question was, was the discretion conferred on the Minister by section 5:

so wide that the Minister may exercise it in a manner inconsistent with s. 92? A discretion which might be exercised in a manner obnoxious to the freedom guaranteed by s. 92 is a discretion wider than the Constitution can support and an attempt to confer such a discretion must fail.

So, the provision would have been invalid if it purported to confer a discretion that could be exercised in a manner obnoxious to section 92 and that was, in fact, the fate that had befallen a number of statutory provisions in the context of earlier section 92 litigation in the transport cases which his Honour describes at the bottom of 611 and the top of 612 where the discretions were so wide and treated as so uncontrollable that they – one could not be confident that absent an enforceable entitlement to a licence that would have lifted the burden, section 92 would have been infringed. But, his Honour distinguishes those cases on 612 at about point 3 saying that cannot be the question here:

For reasons earlier stated, the Act is itself regulatory and the width of the Minister’s discretion can be destructive of the validity of the scheme only if the exercise of the discretion conferred by the statute cannot be restrained by judicial review so that its exercise is within constitutional power.

In the next paragraph, asking what kind of discretion would be obnoxious:

The answer must conform to the criteria by reference to which the consistency of a statute with s. 92 is to be determined.

That we emphasise because it suggests that in looking at the specific question of whether a statutory decision infringes the limit, one draws on the same criteria you would use in assessing the validity of a statute, and that is relevant to the submission I will come to in a moment. Over the page at 613 in the first full paragraph Justice Brennan says:

True it is that the discretion conferred by s. 5 is not confined by statutory criteria. The reason why such a discretion is left at large is not hard to conjecture –

and quoting Swan Hill v Bradbury and we submit that that is the same in substance as the reasons I gave earlier for the width of the discretions under the Public Service Act. Then at the bottom of that page his Honour says about eight lines up:

Yet the s. 5 discretion must be exercised bona fide in furtherance of the purpose for which it was given. Of necessity, the area of the discretion must be large: the nature of the subject to be regulated requires that the discretion be wide.

Equally here, we say:

But it is not so wide that considerations foreign to the purpose for which the discretion is conferred can be taken into account. Nor can the discretion be exercised to discriminate against interstate trade, commerce and intercourse. That is because a discretion must be exercised by the repository of a power in accordance with any applicable law, including s. 92 –

So the discretion has to be exercised in accordance with the constitutional limit. Why? Because of the relevant rule of construction identified immediately at the top of 614:

“... where a discretion, though granted in general terms, can lawfully be exercised only if certain limits are observed, the grant of the discretionary power is construed as confining the exercise of the discretion within those limits.

Then at the bottom of that page, again about six lines up:

The discretion is effectively confined so that an attempt to exercise the discretion inconsistently with s. 92 is not only outside the constitutional power it is equally outside statutory power and judicial review is available to restrain any attempt to exercise the discretion in a manner obnoxious to the freedom guaranteed

In our submission, the essence of that is that where one has a discretion that appears to be capable of crossing a constitutional line, yet obviously the statute cannot provide authority to make a decision that crosses the constitutional line, the discretion has to be exercised in accordance with the constitutional limit and that is achieved by reading as a matter of construction the statutory power to go up to, but not over, the constitutional line, so that the edge of statutory power and the constitutional limit are identical.

EDELMAN J: It does not need to be done as a matter of construction or interpretation. It could just be done as a matter of the section 15A ability, sometimes described as severance, to disapply the statute from those circumstances.

MR DONAGHUE: It could be, your Honour, and it would generate the same answer. The reason I answered your Honour earlier as I did is that, as we read Wotton at 22 and 23, adopting this analysis, it says you do not need to do it as a matter of reading down because as a matter of construction it already aligns with the limit, but it produces the same line. I do not suggest there is a different outcome but

EDELMAN J: But you would go to construction first. You would go first to the interpretation and then, if you cannot do it, you have got the additional legislative power under 15A.

MR DONAGHUE: Then you would have 15A, indeed. But in the context of these widelyframed discretions, you should be able to do it applying the rule of construction and therefore it should never be necessary to get to 15A. Justice Brennan’s analysis that I have just taken your Honours through here was in dissent on this aspect in Miller but it was approved by the Court in Wotton. I have already taken your Honours to 21 to 23. I will not go back to it, but paragraph 10 specifically approves parts of what I have just read to your Honours, and it was also approved by the Court in Sportsbet v NSW which again I will not take your Honours to. It is footnoted in our submissions.

In our submission, there is a considerable body of authority supporting that being the proper approach. We do submit, though, that the premise is that the discretion could otherwise be exercised so as to cross the constitutional line. So that if the statute in question has, by some combination of preconditions to power or mandatory relevant considerations, generally speaking the objects, scope and purposes of the power, it may well be, as a matter of interpretation, possible to constrain the discretion so that it could not cross the constitutional line and, if one can do that, then we are in our question 1 territory.

It is only where there are no preconditions or limits in the statute itself that would so confine the discretion that one needs to adopt an analysis of this kind. It is an analysis that – this might be the last authority I detain your Honours with – in Wainohu, volume 7, tab 41 (2011) 243 CLR 181, the Court applied in the context of a discretionary decision conferred upon a court, the relevant power being the power to make control orders, that the validity of which had been impugned in Wainohu. The relevant passage is at page 231, paragraph 113.

In that book of five tabs that I have handed up and referred your Honours to previously, we have given your Honours behind tab 4 a full text of the relevant provisions of the Act because they do not appear anywhere in the report. In paragraph 113 the Court is referring to 19(7) and it is a little difficult to understand the full import of what their Honours are saying without the text of the provision, but the effect of it was that there was a power to make control orders conferred by 19(1). Section 19(6) said:

The Court may, on making a control order in relation to a person, make any consequential or ancillary orders it thinks fit.

And 19(7) said:

Without limiting subsection (6), an order may be made, if in the opinion of the Court the circumstances of the case require:

(a) if the person satisfies the Court that there is a good reason why he or she should be allowed to associate

So the Court could make an order winding back the control order, in effect, if circumstances of the case satisfied that there was good reason. Obviously, that is a very wide discretion without any preconditions, certainly no obvious features in the regime that would confine an exercise of that discretion by reference to the implied freedom.

But what the Court did in paragraph 113 – and this was a part of the judgment of Justices Gummow, Hayne, Crennan and Bell, with whom Chief Justice French and your Honour Justice Kiefel, as your Honour then was, agreed so this is six members of the Court held that:

19(7) permits the restriction of control orders so as not unreasonably to burden freedom of . . . communication; the power of the Supreme Court to make a control order should be construed –

So construed, not read down:

comformably with the implied freedom so as to render reviewable for error any particular order which exceeded the limit of the implied freedom.

So that appears to be implied freedom constrained the power of the Court on a case by case basis, so as to ensure that no orders were made that would cross the line set by the implied freedom.

In cases of this kind we accept, as should be apparent from what I have already submitted, that the implied freedom is potentially relevant to setting the outer boundary of the statutory power. But, our submission is that it does not follow from that that every time there is a discretionary decision made under a power of this kind, one engages in the whole McCloy analysis in relation to the individual decision. The reason that we say that is that at least in cases where the decision in question is made pursuant to a statutory power, one will necessarily have gone through the McCloy analysis at the level of the statute first – as I have already taken the Court through with question 1.

So, you will ask the question, does it burden the freedom? Does it have a legitimate purpose? Is it suitable? Is it necessary? Having asked all of those questions at the level of the statute, but then having got at the end of the analysis to the question we cannot be sure about whether or not this particular burden crosses the line because the extent of the burden might vary depending on the decision that has been made, if, for example, your Honours find section 15 is relevant to burden, your Honours might think that a reprimand, on the one hand, is justified and dismissal, on the other hand, is not.

If you get to that part of the analysis, then it is not necessary to look at the individual decision and to jump all of the McCloy hoops again. It is necessary, as we have put in writing, to complete the constitutional analysis at the level of the decision. But, it is only any feature of the decision that you have not been able to already deal with satisfactorily at the early stages of the analysis that you would need to evaluate at that stage.

Our submission is – and I do not want to belabour it – is that it is mainly – and certainly in the context of this regime – it seems to us only at the level of the adequacy of balance of the particular sanction – sorry – it is only because of the variability of the burden that might arise from a variety of sanctions that you might conclude that you needed to do an implied freedom analysis at the level of the decision. And, if that is the case, then the only question that one needs to ask is the final question: is the actual decision made in this case adequate, at its balance, when one balances the extent to which the decision pursues the statutory purpose against the burden that it imposes on the implied freedom.

KIEFEL CJ: Do you mean that you assess the adequacy of balance for the purpose of this question or you draw upon what has already been determined in relation to that to answer the narrower question which, because it concerns considerations of balancing because it is penalty, it narrows the area of the decision making itself?

MR DONAGHUE: I do mean that. So it is only – it is a little difficult to address in the abstract because we would say one does not get to this point, but if for some reason you have not been able to conclude that the statute necessarily accords with the line all that is

KIEFEL CJ: The limits to the decisionmaking power should be drawn from what has already been determined.

MR DONAGHUE: Precisely, and that is why you do not go back and do the whole thing again.

EDELMAN J: But you are still really doing it at the level of the statute, it is just that you are doing it at the level of the statute having regard to the circumstances of this particular case.

MR DONAGHUE: Yes. Which might mean one is bringing in – I accept you are doing as much of it as possible at the level of the statute, and it is only to the extent that one needs to see how the statute has applied in a particular context in order to ensure that the statute has not – does not support a decision that crosses the constitutional line that you need to look at the facts.

So, to that extent we submit that the approach adopted here is – should be much more precise than that adopted in some of the overseas jurisdictions, Canada and the UK, where one is engaged with an individual rights analysis, and where the jurisprudence suggests that one does the whole multipronged proportionality test of the level of the statute. Here, in our submission, one should just complete it in that way. And we submit that the way that should be done accords with what your Honour Justice Nettle said in Brown as to the operation of that last step of the adequacy of balance test, and I will not go back to it but it is paragraph 290 of your Honour’s reasons in Brown, which is looking at manifest disproportion.

So, it is not a – because one plainly needs to ensure that judicial review does not morph into merits review of the character of the decision that is being made, which would happen if – or would have clear potential to happen unless the inquiry is restrained in that way.

NETTLE J: And for the purpose of this exercise, would the question be whether, if the statute upon its proper construction admits of dismissal for impugned conduct of the kind that occurred in this case, it would trench upon unacceptably trench upon the implied freedom.

MR DONAGHUE: Yes. That is how we put it. So one hypothesises if the statute purported to authorise the actual burden that has been set

NETTLE J: In all cases of this

MR DONAGHUE: in all cases on that set of facts, would that answer the statutory – would that be justifiable.

NETTLE J: Thank you.

MR DONAGHUE: Exactly.

GAGELER J: Could I ask you a question about section 15 of the statute?

MR DONAGHUE: Yes, your Honour.

GAGELER J: I think the question is really directed to your alternative way of answering question 1

MR DONAGHUE: Yes.

GAGELER J: so you take into account section 13 and you take into account section 15. Just as a matter of construction of section 15, you see a discretion to impose sanctions. Is that a discretion which is impliedly limited only by a requirement of reasonableness, or is there an implied requirement of proportionality, and I am not using that in a constitutional sense, but in a sanctioned sense, between the sanction and the breach?

MR DONAGHUE: I passed over this quickly, your Honour, but our submission is both, implied reasonable but also proportionality in a nonconstitutional sense.

GAGELER J: Is there any case law on that?

MR DONAGHUE: I do not believe so, your Honour. We can look at that again and I will let you know if we can find any.

EDELMAN J: How are you using “proportionality” here in a sense that is different from “reasonableness”? In other words, how could there be the exercise of a discretion in a reasonable way yet one which is not proportionate?

MR DONAGHUE: I apprehend, your Honour, that it might be that reasonableness would be a more coarse filter. So that it might be that there would be a range of sanctions which could not be said to be unreasonable – perhaps not substantially wider than a proportionate range. But ordinarily on a reasonableness review of an administrative decision, you would have to show that the decision was unreasonable in the conventional sense.

It might be and the reason I answered Justice Gageler as I did that one could impose a slightly stricter restriction by analogy with a sentencing type approach, by requiring proportionality, in a small “p” sense, between the conduct found to have breached the Code and the sanction. If they align, then there is no difference. If there is a stricter filter by reason of proportionality, then we accept that it would properly be – section 15 would properly be interpreted as bringing that in.

EDELMAN J: It may just depend on what you mean by reasonableness. Whether by reasonableness you mean a Wednesbury standard of reasonableness or an ordinary standard of reasonableness.

MR DONAGHUE: Yes, your Honour. And there is a discussion in Li, around about I think paragraph 74 or 76 thereabouts in the judgment, that raises the relevance of a proportionality review within the context of reasonableness, and then leaves the question open. So I think that is the debate.

KIEFEL CJ: Was the observation in Li that proportionality, in the administrative law sense, might be one path to reasonableness, but it might not be the whole?

MR DONAGHUE: Yes, your Honour.

KIEFEL CJ: Is that the implication?

MR DONAGHUE: It is, almost exactly, your Honour, in paragraph 74:

So understood, an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached.

So I think we are very much in that territory, in the questions that your Honours are asking me. The only remaining submission I want to make I can make very briefly, which relates to a proposition we understand our friends to advance – that the implied freedom is a relevant consideration, in a Peko-Wallsend sense.

So that one could impugn the decision of the delegates who made the breach and/or sanction decisions here, because they did not consider the implied freedom, even if the ultimate decision that they made was justifiable in an implied freedom sense. In our submission, your Honours should not accept that. And this precise issue was examined by the New South Wales Court of Appeal in A v ICAC, which is behind the last tab in that fivetab handup folder I gave your Honours.

KIEFEL CJ: Is this put by the respondent in relation to the alternative Wotton argument? Or is it put as a standalone proposition that was linked to the notice of contention point, which was the scope and operation of the statute?

MR DONAGHUE: I thought the former, but if your Honours would allow me a moment to check that. Yes, our friend’s submissions are structured a little differently to ours but if you have their submissions on page 14, the submission I am dealing with now is paragraph 45.

KIEFEL CJ: I see, yes.

MR DONAGHUE: We rather understood 42 to 45 to be directed to the Wotton type argument.

KIEFEL CJ: To address section 15 – yes, thank you.

MR DONAGHUE: The New South Wales Court of Appeal in A v ICAC was dealing with quite a number of different arguments challenging the summons authorised under section 35 of the ICAC Act and there was also an argument that section 35 was invalid on implied freedom grounds which the court rejected. The relevant part of the reasons, paragraph 56 in Justice Basten’s judgment with whom Chief Justice Bathurst and Justice Ward relevantly agreed, you will see on page 256 in the middle of the page, the heading “Implied freedom of communication” – the relevant paragraph is paragraph 56 where, from the second sentence:

The applicant sought to argue that the implied freedom operated as a “mandatory consideration” to be taken into account by a commissioner in deciding whether to issue a summons under s 35. While 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 statutory body . . . by limiting the scope of legislative power -

which is the Wotton argument I have been developing:

Nor does it confer a right on individuals . . . Indeed, 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 the authority in the course of exercising the power. The reason why the authority does not have the power cannot sensibly be described as a condition of its exercise.

Then there are quotations from Wotton. We submit analytically that is right. We also make this further and final point. Plainly many, many administrative decisionmakers at the Commonwealth and, indeed, State Government levels are not lawyers and yet potentially administrative decisions that they make might impose burdens on the implied freedom.

It is one thing to hold those decisions invalid if they involve unjustified burdens on the freedom because in that circumstance the statute cannot authorise them. It is another thing entirely to hold those decisions invalid because the decisionmakers have been unable to step through a complicated constitutional analysis which is what would be required if as a condition of a valid decision consideration be given to the implied freedom and it would, we submit, have the consequence or have the potential consequence that a very great many decisions may be invalid notwithstanding that the actual decision that is made is perfectly justified.

We submit, for that practical reason in addition to the conceptual reason explained by Justice Basten in that passage, the distinction should be maintained between the outer limit on power identified in the way that I have been describing through Wotton, Miller, et cetera, and the relevant consideration analysis. Unless your Honours have any questions, those are our submissions.

KIEFEL CJ: Thank you, Mr Solicitor. SolicitorGeneral for New South Wales.

MR SEXTON: If the Court pleases. Before I refer to the statutes, your Honours, can I just note two preliminary points? The first is that, for the purposes of our submissions, we are proceeding on the assumption that in the absence of some invalidity of the relevant provisions of the Public Service Act because of inconsistency with the implied freedom the respondent’s termination amounted to reasonable administrative action taken in a reasonable manner under section 5A of the Safety, Rehabilitation and Compensation Act 1998 (Cth). So, that is the first preliminary point.

The second is that our submissions as to the validity of those relevant provisions are made irrespective of whether any material originally published in this kind of case anonymously, whatever that precisely means in this kind of case, or not - in other words, for the purposes of our submissions as to the validity of the provisions the question of anonymity, we say, from our point of view, is not relevant. It can, of course, be relevant to questions of review, questions of penalty, and so on. I will come to those – but, not for that – not for that initial question.

So, your Honours, the relevant provisions of the Public Service Act, as it then was, are really sections 10 and 13. Your Honours have been taken to these. Section 15 provides for sanctions for breaches of the Code of Conduct set out in section 13. But we say, as a matter of construction, that any sanction applied would have to be reasonably proportionate to the breach of the Code. The Commonwealth has dealt with that in its written submissions at paragraph 45.

In response to Justice Edelman’s question, I am not sure there is a difference between “reasonable” and “proportionate” in this particular instance. But, in any event, we have used the phrase “reasonably proportionate” in relation to that question. So, section 15, we would say, does not figure in the analysis of the validity in the context of the implied freedom.

In addition to that question of reasonability or proportionality of the penalties those sanctions are reviewable under section 33 of the Public Service Act, as are the findings of the breach of the Code in this kind of case by the Merit Protection Commissioner. I do not need to take your Honours to these but it is clauses 5.22 to 5.24 of the public service Regulations 1999. They are at volume 2, tab 7, but your Honours do not need to look at them at this time unless the sanction is termination, in which case the provisions of the Fair Work Act 2009 are applicable. Those provisions require a consideration, amongst other things, of whether the termination was harsh, unjust or unreasonable. So again, this would effectively involve a review of both the finding as to breach and the penalty. The Fair Work Act provisions are at volume 2, tab 5 – but again, your Honours, I do not need to go to them.

So we are also proceeding on the assumption that procedural fairness was accorded to the respondent in relation to the finding of breach of the Code, and in relation to the imposition of the penalty under section 15. Then, turning to sections 10 and 13 – I will not repeat them because your Honours have been taken to them, section 10(1)(a) and section 13(11), so if I can look at those in the context of the formulation set out in McCloy. Again, your Honours have been taken – it is in volume 5 at tab 30, but it may be accepted, we would say in this case, that the two provisions may, in some circumstances, effectively burden the implied freedom although they do not target political communications generally, and they do not prevent the expression of political views in all situations.

Both the Commonwealth and the respondent seem to accept that it is only where there is some nexus or connection to the public service that political communication will be caught by the provisions. It is hard to be dogmatic about particular cases. It might be thought, for example, that a public servant who was a member of a local branch of his or her political party, that that would not cause a problem. On the other hand, if he or she was the branch president, making statements critical of government policies, government ministers in the local paper that might raise different considerations.

As to whether the purpose of the law is legitimate, in the sense of being compatible with the maintenance of the constitutionally prescribed system of representative and responsible government, it must, we would say, be a legitimate purpose to ensure that public service functions are carried out in an apolitical and impartial manner, and that its integrity and good reputation are preserved. The respondent seems to accept at paragraph 55 of her submissions that a law pursuing that purpose would be compatible in the relevant sense.

As to the question of whether the provisions are suitable in terms of the McCloy formulation, there is an obvious, we would say, rational connection between this legitimate purpose and the requirement that public service employees conduct themselves in a way that enables the public service to function as an apolitical and impartial body and ensures that the public service is seen to operate with integrity and to maintain its good reputation.

As to the question of whether the provisions are necessary, it is hard to see what reasonably practical alternative there is to the requirements imposed on public service employees to uphold the relevant values if those values are to govern the operation of the public service.

Finally, in that McCloy formulation, on the question of whether the provisions are adequate in their balance, the burden imposed on some political communications has to be weighed against the important values of ensuring a public service that functions in an apolitical and impartial manner and is publicly seen to operate in that fashion. The importance of that legislative purpose would, we would say, justify a sizeable burden on the implied freedom although, for the reasons that we have already given, the burden here is, we would say, not significant.

In many ways the respondent’s real complaint in this case is not about the validity of sections 10 and 13 but the finding of the breach of the Code of Conduct and the penalty imposed for that breach, given the situation that the material posted was not done under the respondent’s own name. But those two issues are really separate from the validity of the relevant provisions.

The finding of the breach of the Code was, as we have already noted, open to review under the Public Service Act and in this case also effectively in the Administrative Appeals Tribunal by reason of section 64 of the Safety Rehabilitation Act and the penalty imposed in this case, because it was termination, was open to review in the Fair Work Commission which would, as we have already noted, involve a review not only of the finding of breach but also of the penalty.

This analysis, we would say, reflects the Court’s decision in Wotton. I do not think I need to take your Honours to it, you have been taken to the relevant passages – volume 8, tab 43 - where the relevant provision of the Corrective Services Act (Qld) allowed the Parole Board to impose conditions that the board considered reasonably necessary to ensure the prisoners could conduct or to stop the prisoner committing an offence.

At paragraphs 23 and 24 to which the Commonwealth SolicitorGeneral took your Honours, Chief Justice French and Justices Gummow, Hayne, Crennan and Bell noted that if the board’s power or discretion was susceptible of exercise in accordance with the implied freedom, then the provision was effective in its terms, and those members of the Court later found, at paragraph 33, that that was so in that case.

So, in those circumstances, the question of whether certain conditions imposed by the Parole Board exceeded the power granted to the board by the valid statutory provision was one for judicial review, and we would say that similarly in this case that, assuming for the reasons we have given that the statute is valid, then the question, the finding of the breach or the penalty were matters for review, reviews that were available, but in this particular case it has taken another route and those avenues of review have not been pursued. But the real question is the validity of the relevant provisions of the statute. For the reasons we have given, we say that the Court confined validity in this case and that means that it is not necessary to proceed beyond that particular finding.

NETTLE J: If the Commonwealth SolicitorGeneral is right that the penalty imposed must be proportionate to the offence or at least the contravention of the Act, and if it were the case that the penalty imposed in this case were disproportionate but that has not been reviewed on appeal because no appeal was taken against it, we are really not in a position to say whether the Act upon its proper construction allows for – in allowing for dismissal in the event of a contravention of the kind which occurred here unjustifiably burdens the implied freedom, are we?

MR SEXTON: Your Honour, we would say that it is not apposite here to look at section 15 at the penalty section but at sections 10 and 13 and if those provisions are valid then we would say the Act is valid.

NETTLE J: But if they are not and if the Commonwealth SolicitorGeneral is right in argument in saying that there might arise the situation where one cannot say certainly that in all its possible applications the Act will not possibly infringe the implied freedom, then one must approach it on a casebycase basis and ask does it infringe the implied freedom by allowing for a proportionate penalty of dismissal for a conduct of the kind which occurred in this case. We are not in a position to answer the question because we do not know with certitude, do we, or are we to assume that the penalty that was imposed in this case was proportionate?

MR SEXTON: That is so, but that is, as I understand it, the Commonwealth SolicitorGeneral’s, in a sense, second argument.

NETTLE J: It is.

MR SEXTON: But his first argument is the one, in a sense

NETTLE J: That is the only one you are interested in.

MR SEXTON: It is - that we have just put. But if one looks at – that is why I say section 15 is not relevant to that question. It provides a wide range of possible penalties and the way to test those is by review, internal review, or by the Fair Work Act review, or possibly by judicial review and that is in accordance with Wotton. We would say that your Honour just will not get to that particular question.

NETTLE J: Yes, right, thank you.

MR SEXTON: Unless there is anything else, your Honours, those are our submissions.

KIEFEL CJ: Thank you. SolicitorGeneral for South Australia.

MR BLEBY: If the Court pleases. South Australia addresses only question 1 on the notice of appeal. We address the compatibility testing of the law from paragraph 25 of our written submissions and we address, in particular, the purpose of the law because while the question itself does have a statement of purpose built into it, it is of course for the Court to construe the purpose, notwithstanding the statement that the parties may have landed on.

The construction task of identification of purpose or purposes of a statutory provision of course requires identification of the mischief or mischiefs to which the law is directed. As has been noted today by your Honour Justice Gageler, and also, your Honour, elsewhere, the starting point is a statement of any object in the statute which may have to be illuminated by statutory context, particularly if the object is in some degree ambiguous.

Now, section 3A is the critical object that has been under consideration, and while it is not ambiguous it is general, in particular, in the words “effective in serving the government”. The object – said object, in our submission, is given context in section 10(1), and section 10(1)(a) in particular, gives context to the description “apolitical” in that - without the addition of the words “impartial” and “professional”. Now, that is a matter the Commonwealth SolicitorGeneral addressed on.

But then, section 10(1)(e) expands on the reference, in my submission, in section 3A to serving the government, the Parliament and the Australian public and that it places that objective in the context of the APS being openly accountable for its actions within the framework of ministerial responsibility. That is to say the object of being effective in serving the government, et cetera, in 3A involves also being accountable to the government, Parliament, the Australian public, in the sense that is understood by the concept of responsible government.

Section 13(11) then expressly connects the APS values with the required behaviour of an APS employee and specifically it requires an APS employee to at all times behave in a way that upholds the APS values. So it is not expressly limited to the value in section 10(1)(a). So the question, to make good my proposition that it relates – how does it relate to 10(1)(e) is to look at the fact that section 13(11) also speaks to the integrity and good reputation of the APS, that is the internal character and functioning of the organisation and the public perception of that organisation because these are characteristics of the proper functioning of responsible government and they give, in my submission, specific content to behaviour that is required to uphold the value set out in section 10(1)(e).

That point was made not in terms and in a more acute situation, but parallel circumstances in the Chief of the Defence Force v Gaynor in a passage that the Commonwealth SolicitorGeneral has taken the Court to at joint book, 4 tab 22 at page 1523 of the book. It is paragraph 106 and I will not read the entire paragraph out, just to note that given this was – this paragraph was set in the context of compatibility testing. The Court said that:

The ends pursued by reg 85, as but one of a number of powers available to control the behaviour and regulate the membership of the ADF, including by termination, were in our opinion consistent with preserving the integrity of the system of representative and responsible government.

Now, I pointed out that is in the context of compatibility testing. The statement for compatibility testing, as this Court said in paragraph 2 in McCloy, which I will not take the Court to, referred to representative government. By the time it restated the compatibility test in Brown - at paragraph 104 it stated:

The commencing words of Questions 2 –

and this is – it gets to question 1:

is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.

So, there was, in fact, a statement at least that brought in or at least acknowledged responsible government which is of course a pillar of representative government by the time the Court made the statement in Brown.

It is in this faceted way that section 13(11) gives bite to the APS value that is set out in section 10(1)(e). South Australia submits that the purpose then of section 13(11) can be said – be given full effect as to regulate the conduct of APS employees to enhance the effective functioning of the APS as an organisation of integrity and good reputation in furtherance of the structure of responsible government established by the Constitution and given content by the Public Service Act.

By linking the behaviour of public servants to an APS value and object of the Act that promotes responsible government, section 13(11) is indeed enhancing the system of representative and responsible government. So that connection between requirements of behaviour in the section, which relevantly impose a burden on political communication, and the APS value that promotes accountability within the framework of ministerial responsibility provides an answer to the challenge that the respondent makes to the Commonwealth at paragraph 54 of the respondent’s written submissions, where the respondent says:

The Commonwealth claims that public servants can be singled out for burdens on political communication “because the imposition of such burdens . . . promotes the functioning of the system of

government for which the Constitution provides”. But it must show that this objective is connected to and advanced by the particular provisions impugned here. Not every law restricting public servants’ political speech could bear on the Executive government‘s performance of its constitutional role –

That is the connection that we draw in order to answer that. Is that a convenient time?

KIEFEL CJ: Yes, it is. Could the parties and the interveners assist with some idea of finishing time tomorrow, now? If we could have some sense of – it probably depends mostly on the respondent, Mr Merkel.

MR BLEBY: I will only be 10 or 15 minutes, your Honour, at the most.

KIEFEL CJ: Mr Merkel?

MR MERKEL: .....

KIEFEL CJ: Could you be a little more specific? It is a rather long time in a day.

MR MERKEL: I would estimate.....

KIEFEL CJ: I thought that some of your argument, though, was restricted.

MR MERKEL: .....overnight.

KIEFEL CJ: Do you think you will require the full estimate that you originally gave?

MR MERKEL: .....

KIEFEL CJ: All right. Yes, thank you. The Court will adjourn until 9.45 am.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 21 MARCH 2019