Banerji and Comcare (Compensation) [2018] AATA 892 (16 April 2018) Division: General Division File Number(s): 2014/5055 Re: Michaela Banerji APPLICANT And Comcare RESPONDENT DECISION Tribunal: Deputy President Gary Humphries Dr B Hughson, Member Date: 16 April 2018 Place: Canberra The Tribunal sets aside the reviewable decision of 1 August 2014 and instead finds that on 13 September 2013 Ms Banerji suffered an adjustment disorder characterised by depression and anxiety, being an injury pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988. ........................................................................ Deputy President Gary Humphries © Commonwealth of Australia 2017 Catchwords COMPENSATION – adjustment disorder characterised by depression and anxiety – mental injury significantly contributed to by Ms Banerji’s employment – whether termination of Ms Banerji’s employment for breaches of the APS Code of Conduct was reasonable administrative action taken in a reasonable manner – reviewable decision set aside. CONSTITUTIONAL LAW – implied freedom of political communication – whether the APS Code of Conduct burdens this implied freedom – whether the Code is reasonably appropriate and adapted to serve a legitimate end PUBLIC SERVICE, PROFESSIONS AND TRADE – duty of fidelity and loyalty – whether the implied freedom of public servants is restricted in certain circumstances – preserving the capacity of the APS to deliver effective and professional services to the Australian government Legislation Acts Interpretation Act 1903 s 15A Public Service Act 1999 ss 10, 13, 15, 29 Safety, Rehabilitation and Compensation Act 1988 ss 5A, 14 Cases A-G (SA) v Corporation of the City of Adelaide [2013] HCA 3 Bailey v Conole (1931) 34 WALR 18 Banerji v Martin Bowles, Acting Secretary, Department of Immigration and Citizenship [2013] FCCA 1052 Bennett v President, Human Rights and Equal Opportunity Commission (2003) 134 FCR 334 Brown v Tasmania [2017] HCA 43 Central Market Stallholders’ Association Inc v City of Adelaide (1985) 57 LGRA 264 Coleman v Power (2004) 220 CLR 1 Drake v Minister for Immigration and Ethnic Affairs (1999) 46 FLR 409 FCT v Day (2008) 236 CLR 163 Fraser v Public Service Staff Relations Board [1985] 2 SCR 455 Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370 PAGE 2 OF 62 Haydon v Canada [2001] 2 FC 82 Haydon v Canada [2004] FC 749 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 McCloy v New South Wales (2015) 257 CLR 178 Olsen v City of Camberwell [1926] VLR 58 Osborne v Canada [1991] 2 SCR 69 Rice v Daire (1982) 30 SASR 560 Starr v Department of Human Services [2016] FWC 1460 Wotton v Queensland [2012] HCA 2 Secondary Materials Christopher Erskine, ‘The Bennett Decision Explained: The Sky is Not Falling!’ (Paper presented at an AIAL seminar, Canberra, 27 April 2005) Department of Immigration and Citizenship, Code of Conduct Guidelines Australian Public Service Commission, Circular 2012/1: Revisions to the Commission’s guidance on making public comment and participating online (social media) (at 10 January 2012) Department of Immigration and Citizenship, ‘What is Public Comment?’ Workplace Relations and Conduct Section Fact Sheet, Department of Immigration and Citizenship REASONS FOR DECISION Deputy President Gary Humphries Dr B Hughson, Member 16 April 2018 1. Ms Michaela Banerji was an employee of the (then) Department of Immigration and Citizenship (the Department) when, in September 2013, her employment was terminated on the basis that she had breached the Australian Public Service (APS) Code of Conduct (the Code). The conduct relied upon by the Department as the basis for the breach was Ms Banerji’s use of a Twitter account to post tweets which were highly critical of the then government, the then minister, certain policies of the Department and the Department’s Communications Manager, Mr Sandi Logan. PAGE 3 OF 62 2. On 18 October 2013 Ms Banerji lodged a claim for workers compensation for post- traumatic stress disorder under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). A delegate of Comcare refused this claim on 24 February 2014, and, following reconsideration, that decision was affirmed on 1 August 2014. Ms Banerji lodged an application for merits review by the Tribunal on 30 September 2014. STATEMENT OF AGREED FACTS AND ISSUES 3. There have been many interlocutory steps in the progress of Ms Banerji’s application before the Tribunal – including proceedings before the Federal Circuit Court, the Federal Court and the High Court – which have had the effect of delaying its hearing. A hearing was eventually set down before the Tribunal in November 2017, but shortly before the hearing the parties reached agreement on a statement of facts and issues, allowing the matter to be heard (except in one respect) on the papers. That statement is reproduced here (cross-referencing is omitted): Decision under review 1. The decision under review is a decision by a Comcare Review Officer (RO) dated 1 August 2014, which affirmed the determination dated 24 February 2014, denying the applicant’s claim for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for a psychological condition (the claimed condition). Agreed Facts 2. The parties agree that the following statement and the annexed documents constitute the facts and evidence on which the Tribunal will determine the remaining issue in this proceeding. Background 3. On 10 April 2006, the applicant was offered and accepted employment as an ongoing APS 6 employee within the Ombudsman and HREOC section of the Department of Immigration and Border Protection (DIBP). 4. The date of commencement to the ongoing position was agreed to be 29 May 2006. The applicant commenced her ongoing role on that date. Current claim for compensation 5. On 18 October 2013, the applicant submitted a further claim for compensation under s 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act) for a psychological condition (‘post-traumatic stress disorder’) arising from events leading PAGE 4 OF 62 to and including the termination of her employment for a breach of the Public Service Code of Conduct. 6. The date of injury was given as 13 September 2013. This was the date on which the applicant was advised that her employment was terminated for misconduct. The effective date of the termination was 27 September 2013. 7. As a consequence of the termination, the applicant suffered a ‘disease’, being an ailment that was contributed to, to a significant degree, by the applicant’s employment with the Commonwealth within the meaning of s 5B(1) of the Act. 8. The date of onset of the disease was 13 September 2013 being the first day that the disease resulted in an impairment and incapacity for work. 9. The correct diagnosis of the ailment is ‘an adjustment disorder characterised by depression and anxiety’ being an aggravation of an underlying psychological condition. 10. The ailment was suffered as a result of the termination of the applicant’s employment with the Commonwealth. The applicant would not have suffered the ailment if the termination of her employment had not occurred. 11. The termination of the applicant’s employment was administrative action taken in respect of the applicant’s employment. 12. The parties agree that the termination of the applicant’s employment was reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment unless the applicant can establish that the termination of her employment with the Commonwealth falls outside the exclusion in s 5A(1) of the Act, having regard to the implied freedom of political communication. The termination decision 13. Prior to 7 March 2012, Ms Banerji tweeted using the twitter handle Lalegale. The identity of Lalegale was not at that time publicly known. LaLegale commented on matters relevant to the Department of Immigration and Citizenship portfolio [now known as the Department of Home Affairs] but did not disclose confidential information obtained in the course of her employment. 14. On 7 March 2012, the Workplace Relations and Conduct Section received a complaint from an employee of the Department, Ms Mardi Stewart, Director Internal and Strategic Communications copied to Mr Sandi Logan, National Communications Manager. The complaint alleged that the Applicant was inappropriately using social media in contravention of the APS Code of Conduct. 15. After reviewing the 7 March 2012 complaint, Geofrey McKinnon, Director, Workplace Relations and Conduct Section, decided that the complaint made by Mr Logan did not contain sufficient material to proceed with a formal APS Code of Conduct investigation in relation to the Applicant's alleged conduct. Mr Logan was advised of this decision orally. PAGE 5 OF 62 16. On 9 May 2012, the Workplace Relations and Conduct Section received a second, more detailed complaint from Mr Logan in relation to the Applicant's conduct. On the basis of the information contained in the 9 May 2012 complaint, on or around 15 May 2012, Mr McKinnon decided to initiate an investigation in relation to whether the Applicant's alleged conduct gave rise to possible breaches of the APS Code of Conduct. 17. On 23 July 2012, the Workplace Relations and Conduct Section of DIBP informed the Applicant of the decision to initiate an investigation in relation to whether the Applicant's alleged conduct gave rise to possible breaches of the APS Code of Conduct. 18. Between 15 May 2012 and 13 September 2012, Ms Lidija Hary, Assistant Director, Workplace Relations and Conduct Section conducted an investigation into whether the Applicant's alleged conduct gave rise to possible breaches of the APS Code of Conduct. Ms Hary prepared an investigation report dated 13 September 2012. 19. On 20 September 2012, Robyn White, Director, Workforce Design and Strategy and authorised delegate sent a letter to the Applicant setting out a proposed determination of breach of the APS Code of Conduct.