Australia: To tweet or not to tweet? That was the question.

Last Updated: 13 August 2019
Article by Joel Zyngier, Martin Stirling and Phoebe Griffin

On 7 August 2019, the High Court of Australia handed down a unanimous decision in Comcare v Banerji [2019] HCA 23, in which it held that the termination of a public servant's employment (after she anonymously tweeted criticism of departmental policies) was constitutionally permissible. The High Court overruled an Administrative Appeals Tribunal (AAT) finding that the termination was in breach of the implied constitutional freedom of political communication.

Whilst the decision specifically relates to public sector employment, the High Court made a cautionary statement about the risks of anonymous social media posts. This caution applies to all employees, so employers should ensure their Social Media policies are up to date and able to deal with anonymous social media posts.

The employee, Ms Banerji, worked within the Department of Immigration and Citizenship (the Department) from 2006 to 2012. In this time, she operated a Twitter account under the handle @LaLegale. Using the account, Ms Banerji posted over 9,000 tweets commenting on Australian politics, criticising Australian immigration policy and individuals in the Department.

Following an internal investigation in 2012, the Department concluded Ms Banerji operated the Twitter account and her conduct in doing so was in breach of the Australian Public Servant (APS) Code of Conduct (Code). Under the Public Servant Act 1999 (Cth), the APS Values direct that the APS is 'apolitical, performing its functions in an impartial and professional manner.'1 Under the Code, public servants must 'disclose, and take reasonable steps to avoid, any conflict (real or apparent) in connection with APS employment'.2 The Department terminated Ms Banerji's employment on the basis that her criticism of the Department brought into question her capacity to work professionally and impartially. Ms Banerji attempted to avoid the termination of her employment with an application for an injunction to the Federal Circuit Court, which ultimately failed.

In 2013, Ms Banerji lodged a claim for workers' compensation on the basis she suffered from an adjustment disorder characterised by anxiety and depression as a result of the termination of her employment. The Department defended the claim arguing that her injury was excluded from compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth), as it arose in circumstances of 'reasonable administrative action'. Under the Public Servant Act 1999 (Cth), the Department was entitled to impose a sanction of termination.[3] As such, the Department considered the termination of Ms Banerji's employment was 'reasonable administrative action'.

In 2018, the AAT determined the termination of Ms Banerji's employment was invalid as it 'impermissibly trespassed upon [Ms Banerji's] implied freedom of political communication'. This decision was appealed to the High Court.

The High Court overturned the AAT decision. It did so on the basis that the implied constitutional right to freedom of political communication is not a personal right to free speech; rather, it is a restriction on legislative power to create laws that unjustifiably burden political communication as a whole.

The High Court rejected Ms Banerji's argument that the APS Code unjustifiably burdened political communication as a whole, stating this was a 'remarkable proposition.' The High Court found that it is essential to the proper functioning of a democratically-elected government that the government can have confidence that its public servants will faithfully and professionally implement accepted policy, irrespective of individual personal political beliefs.

Ms Banerji argued further that she had not been in breach of the APS Code because her tweets had been anonymous and did not identify she was an employee or a representative of the Department. The High Court rejected this argument, stating that '...anyone who posts material online, particularly on social media websites, should assume that, at some point, his or her identity and the nature of his or her employment will be revealed'. The High Court observed that the facts of the case were illustrative of the risk of identification.

To her detriment, Ms Banerji relied on constitutional arguments which were resoundingly rejected by the High Court. The High Court alluded that she may have had better prospects had she brought a claim for unfair dismissal under the Fair Work Act 2009 (Cth), which allows a former employee to seek a remedy (reinstatement of compensation) from the Fair Work Commission in circumstances where his/her termination was 'harsh, unjust or unreasonable'. The High Court observed a termination may be harsh because it is disproportionate to the gravity of the misconduct for which the sanction is imposed. In this sense, while Ms Banerji failed to show the termination was not a reasonable administrative action, she may have been able to demonstrate it was nonetheless harsh.

This decision relates specifically to the employment of public servants; the legal principles are not necessarily applicable to private sector employment. However, one point applicable to all employees is the cautionary statement from the High Court that '...anyone who posts material online, particularly on social media websites, should assume that, at some point, his or her identity and the nature of his or her employment will be revealed'.

Employers need to have in place a suitable Social Media policy which enables them to properly deal with employee posts on social media (both identified and anonymous) that impact their employment or the employer's business. Nonetheless, as noted by the High Court, a termination (e.g. for social media posts) may be harsh because it is disproportionate to the gravity of the impugned misconduct. That is, employers should never rush to dismiss an employee for social media posts. Employers must ensure any dismissal is not only justified in fact and following a fair process, but also proportionate to the employee's conduct.


1Public Servant Act 1999 s 10.
2 ibid s 13.
3 Ibid s 15.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions