Sex - the new definition

Is ‘sex’ limited to male or female, or can it include individuals who identify as neither?  For the first time, an Australian court has legally recognised people who do not identify as male or female.

This case doesn’t have any immediate consequences for the interpretation of Victorian laws.  However, it provides food for thought for Victorian legislative drafters, policy developers and certain public servants, such as those working in criminal law or other laws premised on a binary understanding of sex.  It could also be raised in Victorian matters involving recognition of the non-specific gender of a person.

In Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145, the NSW Court of Appeal considered the meaning of ‘sex’ in the context of the NSW Births, Deaths and Marriages Registration Act 1995 (NSW BDMR Act).  The decision was handed down on 31 May 2013.

The appellant, Norrie, was born male and had a sex change operation that left Norrie not identifying with either gender.  In March 2010, the NSW Registrar of Births, Deaths and Marriages issued Norrie with a Recognised Details Certificate, which recorded Norrie's sex as 'not specified'.  This type of certificate is issued to immigrants to Australia, such as Norrie who was born in Scotland, who have changed sex and want it formally recorded.  However, shortly afterwards, Norrie was advised by the Registrar that the Certificate had been issued in error and was invalid.  The Registrar claimed that her power to register a sex change was limited to a change from male to female or vice versa.

Norrie first applied for review of the Registrar's decision to the NSW Administrative Decisions Tribunal (ADT), which dismissed the application.  Norrie was also unsuccessful before the Appeal Panel of the ADT.  Accordingly, Norrie appealed the Appeal Panel's decision on a question of law in the NSW Court of Appeal. 

The issue was whether the Registrar's power under s 32DC to register a person's change of ‘sex’ after a ‘sex affirmation procedure’:

• is limited to registering a change of a person's sex from male to female (or vice versa); or
• extends to changing the sex to some other specification.

‘Sex’ is not defined by the NSW BDMR Act.  Section 32A defines ‘sex affirmation procedure’ as:

a surgical procedure involving the alteration of a person's reproductive organs carried out:
(a) for the purpose of assisting a person to be considered to be a member of the opposite sex, or
(b) to correct or eliminate ambiguities relating to the sex of the person.

Section 32A(b) was relevant to Norrie.

The Registrar contended that:

• ‘Sex’ should be given its ordinary meaning – that is, male or female – given there was no contrary intention in the Act. 
• The use of the phrase ‘opposite sex’ in s 32A confirmed this interpretation, as the meaning of sex should remain constant throughout the Act. 
• As other NSW legislation was premised on a binary construction of ‘sex’, it would be contrary to the purpose of the Act, which was to clarify a person’s legal status, to enable registration of a sex not recognised in any other NSW law.

This last point may be of interest to Victorian legislative drafters and certain public servants, particularly those working in criminal law.  The decision identifies several NSW legislative provisions based on a binary understanding of sex that may no longer protect a person like Norrie.  Such examples also exist in Victoria, including: 

• Criminal offences committed against females such as compelling sexual penetration of a vagina and offences relating to unlawfully detaining a female for immoral purposes.
• Protections in the criminal process, including:
• bodily searches under the Crimes Act 1958, the Control of Weapons Act 1990 or the Terrorism (Community Protection) Act 2003
• the taking of photographs under the Sex Offenders Registration Act 2004
• the composition of meetings of the Youth Parole Board and Youth Residential Board.
• Pension entitlements under the Coal Mines (Pensions) Act 1958.
• Construction of implied covenants under the Property Law Act 1958.
• Nomination to be a community visitor under s 28 of the Disability Act 2006, or to be a member of the Forensic Leave Panel or the Mental Health Review Board.
• Arguably, adoption leave under the Payroll Tax Act 2007.

The Court disagreed with the Registrar, finding it was open to the Registrar to register Norrie’s sex as ‘non-specific’.  It reasoned as follows:

• The word ‘sex’ no longer bears a binary meaning of male or female, according to extrinsic material including the most recent Oxford Dictionary, academic material, a very broad interpretation of the Second Reading Speech and the rule that beneficial legislation should be interpreted liberally.
• The use of the word ‘sex’ in the definition of ‘sex affirmation procedure’ did not limit its meaning in s 32DC (where it is unqualified).  Rather, the recognition in s 32A(b) of sexual ambiguities is an indication that Parliament intended ‘sex’ in s 32DC to be interpreted liberally.
• The possible legislative consequences of the registration of a person as neither male nor female should not dictate the construction of s 32DC.  This is because no one is compelled to seek a change of sex, and because courts may be able to interpret legislation in individual cases to avoid any absurdity.

The Registrar has applied to the High Court for special leave to appeal the decision. 

The only people for whom this decision has direct consequences are those in NSW who meet the requirements of Part 5A of the NSW BDMR Act (ie persons who have undergone a 'sex affirmation procedure').

The Victorian Act is likely distinguishable as its definition of 'sex affirmation surgery' excludes the second limb of the NSW definition.

However, the decision may have indirect consequences in Victorian case law and legislative and policy development.

Firstly, the decision may be persuasive to a Victorian judge, regardless of the differences between the two Acts.

Secondly, the decision is consistent with new federal laws and the policy of the previous federal Government to define ‘sex’ more broadly than as male or female and to change public service practices in this regard.

The federal Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was passed by the previous Parliament on 25 June 2013 and will commence before the end of the year.  It amends the Sex Discrimination Act 1984 to cover discrimination on a range of new grounds, including intersex status.

Assuming the amendments are valid, if the Victorian Act is not proscribed under the new s 40(2B) of the federal Act, any sections of the Act that are inconsistent with the Commonwealth law will be invalid to the extent of the inconsistency.  The Explanatory Memorandum noted that the previous federal Government had not yet decided which Victorian laws that might be proscribed under this provision.

Also, the previous federal Government developed guidelines on sex and gender recognition for federal departments and agencies.  The Australian Government guidelines on the recognition of sex and gender, which came into force on 1 July 2013, standardise sex and gender classification in federal government records and evidence required to establish or change sex.  All departments and agencies have until 1 July 2016 to comply with the guidelines.

If you are in the Victorian Government and would like more information about this decision and its possible consequences, please contact:

Joanne Kummrow
Managing Principal Solicitor
t 8684  0462
joanne.kummrow@vgso.vic.gov.au

Changes to the Public Private Partnerships guidelines

In May 2013, the Treasurer Michael O'Brien announced significant reforms to the Victorian Government's public private partnership (PPP) guidelines.  The new Partnerships Victoria Requirements, together with the National PPP Policy and Guidelines, apply to the next phase of Victorian PPP projects.

The areas of reform include the following.

Expanding the type of services that can be provided

The Government will consider expanding the type of services that can be provided under the PPP model to include services that were previously delivered by the public sector.  For example, the Ravenhall Prison Project (for which Expressions of Interest are currently being evaluated) will include custodial services provided by the private sector. 

Applying the PPP model to small-scale projects

Projects valued at less than $50 million may use a streamlined PPP model to generate private investment if they have suitable value for money drivers.  Alternatively, projects can also be bundled together to attract the PPP model.

Changing how value for money is assessed

The Public Sector Comparator (PSC) will continue to be used as a benchmark to test value for money for PPP projects.

However, if bidders do not meet the risk adjusted PSC cost expectations through the procurement process, this does not necessarily mean the Government will revert to traditional design and construct delivery.

Government must also now develop a scope ladder alongside each PSC.  Its purpose is to identify any scope items that bidders can remove or add should bids be over or under the PSC. 

Reducing bid costs

The reimbursement of partial bid costs for some PPP projects will be trialed.  Government will communicate its approach for reimbursement for a particular project at the time of releasing the Expression of Interest.  The Government may also consider reimbursing some bid costs incurred by losing bidders in exchange for intellectual property in their unsuccessful bid, on a project specific basis.

The new requirements are also aimed at process improvements, including to:

• minimise information submission requirements; 
• shortlist only two bidders where appropriate; and 
• avoid ‘best and final offer’ processes where possible.

Modified financing structures

The Government will consider making partial capital contributions for some PPP projects.  Normally, construction of PPPs is financed entirely by the private sector and repaid by the Government over the life of the project.  This change in policy is aimed at increasing private sector investment by providing an alternative to full private finance.

Government contributions could be made either as:

• milestone payments during construction (eg for large scale projects); or
• a lump sum payment once construction is complete. 

For more information about public private partnerships, please contact

Julie Freeman
Assistant Victorian Government Solicitor
t 9947 0404
julie.freeman@vgso.vic.gov.au

How to sue the government

As government lawyers, you may receive originating processes served on your department or agency.  One of the first questions you should ask is whether it identifies the correct State party.

This is not always as easy as it seems.  Here’s an overview of the basic rules.

Of course, if you are served with documents and you intend to engage our office, you should do so as soon as possible to ensure you meet the deadlines for filing response documents.

Civil and constitutional cases

Federal courts

In federal courts, the State must bring any suit in the name of the Attorney-General of Victoria or his appointee.  But in the rare situation that the State responds to an action in a federal court, the correct party would generally be the State of Victoria (as here).

To serve the State in a Federal or High Court proceeding, you should serve the Attorney-General or the VGSO (on his behalf).  Our service details are here.

State courts

To sue the Victorian government in a State court, the correct party is generally the State of Victoria.

This includes where the State of Victoria is vicariously liable for the torts of its servants or agents.  However, if the grievance is with a statutory corporation about a contract it has entered into or a tort of any of its servants or agents, the correct party is the relevant statutory corporation.

In all State courts, service of documents on the State of Victoria is via the VGSO.
We are also authorised to accept service on behalf of Ministers.

Judicial review (in the Supreme Court)

In judicial review proceedings (whether brought under Order 56 or the Administrative Law Act), the application for review or originating motion must be directed to:

• the relevant decision-maker (or its members); and
• any party interested in maintaining the decision.

For example, in this case, the Municipal Building Surveyor had issued notices asking a property owner to demonstrate why he was permitted under the Building Act to use some flats at Docklands as serviced apartments.  The property owner appealed the notices to the Building Appeals Board, who dismissed the Appeal.  The parties to the Supreme Court judicial review proceeding were:

• as plaintiff – the property owner;
• as first defendant – the Building Appeals Board (who took a Hardiman position, that is, took no active role in the proceeding);
• as second defendant – the person fulfilling the role of Municipal Building Surveyor who issued the notices; and
• as third defendant – the Council who appointed the Surveyor.

If the decision-maker is a judicial or public authority or the holder of public office, he or she should be described by the name of the authority or office.  For example, in this case, the defendant was correctly identified as the “Health Services Commissioner” (an office created by statute), rather than the name of the person who held the office at the time. 

What if the body that made the decision is not a legal entity?  For example, in this case, the respondent was the Appeals Costs Board – a statutory body comprised of a number of people appointed by the Attorney-General that was not a body corporate.  The Supreme Court said the proper respondents were the particular members of the Board who made the decisions sought to be reviewed.

Finally, it is important to identify the person or body who actually made the decision being challenged.  In this case, a prisoner sought (amongst other things) an injunction allowing him to send a letter to one of his victims.  He applied for an injunction against the Commissioner for Corrections.  But under the Corrections Act, it is the Governor of a prison that has the power to stop letters from prisoners, not the Commissioner.  The Court asked for the application to be brought against the correct defendant.

Merits review (in VCAT)

In a merits review proceeding, the parties are:

• the applicant;
• the decision-maker who made the decision;
• any person joined as a party to the proceeding by the Tribunal; and
• any other person specified by legislation as a party (for example, co-owners of land in an application to sell co-owned land).

As with judicial review, a decision-maker who is the holder of a public office or holds a position in the public service is to be described by their position.

Unlike judicial review, a person whose interests are affected by the decision does not have a right to party status.  The tribunal may decide not to join a party if their joinder would cause expense or delay.

Also unlike judicial review, the appropriate respondent may be an unincorporated body. For example, in freedom of information cases, unincorporated bodies can be considered the ‘agency’ that made the decision.

And finally, unlike judicial review, the decision-maker who made the decision may not take a Hardiman approach and must play an active role in the proceeding, helping the Tribunal understand the decision.

If you are in the Victorian government and have been served with court documents, please contact:

Stephen Lee
Assistant Victorian Government Solicitor
t 8684 0410
stephen.lee@vgso.vic.gov.au

How to be a five-star witness

Government solicitors are often asked to prepare departmental or other witnesses to give evidence in court or VCAT.  You may not coach witnesses, that is, suggest answers to questions.  But here are some tips that you can provide to them to make their (and your) life easier before what can be a nerve-wracking experience.

The days before

• Do not discuss your evidence with other witnesses.
• Review any notes or statements you have made.
• Find out where the court is and how long it will take you to get there.
• Find out how long you will be needed for.  Courts normally sit from 10 until 4, with a one-hour break at 1pm.  VCAT listings vary.  Every effort will be made to minimise the time you spend at court, but be prepared to wait.

On the day

• Bring any statements or notes you have made about the case with you to court. Tell the solicitor which documents you have brought.
• Choose clothes that show respect for the judge and the court proceedings.  Look professional, dressing appropriately for your position.
• Make sure there are no sharp or glass objects in your bag (e.g. knitting needles, tweezers, umbrellas).
• Get to court in good time.  There may be a queue to pass through security.
• Turn your phone off before you enter the courtroom.

In the minutes before

• Sit outside the courtroom until it is time for you to give evidence.  Someone will come and get you when it is your turn.
• Before giving evidence, you will be asked if you wish to take an oath or make an affirmation that your evidence is true.   

Giving evidence

• The claimant in a civil action or the prosecution in a criminal trial will put their case first. Their witnesses will give evidence and be cross-examined (by asking additional questions).  The witness may then be ‘re-examined’. Once this process has happened, the defence will do the same with its witnesses.
• The Judge, Magistrate or Member may also ask you questions about your evidence.  You should address the Judge or Magistrate as ‘Your Honour’.  In VCAT, it depends on the seniority of the Member hearing your case:
• The VCAT President is addressed as ‘Your Honour’
• Vice Presidents are addressed as ‘Judge’.
• Members are addresses as ‘Sir’ or ‘Madam’ or as ‘Ms’ or ‘Mr’ and the Member’s surname. 
• Giving evidence is not a memory test.  You don’t get points for answering every question.  Do not guess or speculate. If you are not sure about an answer, just say so, else you may do more harm than good.  You can’t say, for example, ‘I would have done X’ or speculate about why a person acted in a particular way.
• Listen to and think about each question before you answer. 
• Give evidence in your own words.
• Make your answers as specific as you can.  Do not generalise.
• If you do not understand a question, you should say so.
• Do not say what someone else has told you unless you are asked.
• Explain any technical terms you have to use.
• Speak clearly so that your evidence can be understood. The microphone in front of you only records your voice. It does not make it louder.  You are giving evidence to the judge, so face them when answering a question
• You should not look at your notes without permission from the Judge.  If you are having trouble remembering details or accurately answering the questions, ask the Judge for permission before looking at any notes that you made at the time when the events were fresh in your memory.
• Cross-examination normally takes the form of a series of propositions put to you by the other side’s barrister. If you do not agree with all parts of the proposition, say so.  If you do not know whether a proposition is right, say so.  Don’t just agree with the barrister because you don’t want to seem obstinate.
• Don’t lose your patience with the other side’s barrister when being cross-examined.  The best witnesses remain neutral and focused. 
• If a witness has never been cross-examined before, one way a solicitor can help a witness understand how it feels is to engage in a mock cross-examination beforehand, using the type of questioning styles that a barrister would use in court.  This mock cross-examination should not be based on facts similar to the actual hearing.
• If you qualify as an expert witness (and meet all the requirements for this status), you may give opinions within your expertise.  Otherwise you can only give evidence of facts.

After

• After you have given your evidence and are excused by the court, you are free to leave. You may stay in the courtroom if you wish, unless you are expected to give evidence again later in the case.

VGSO has a network of experienced advocates who can represent Victorian government clients in all courts and tribunals.  Briefing our in-house advocates, rather than a barrister, can be more cost effective and ensures access to our expertise in specialist areas of Victorian government law.  Having regard to the demands of a particular matter, we can provide advocates ranging from our Special Counsel to solicitors of various seniority.  For more information about VGSO advocates, please contact

Hayley Petrony
Assistant Victorian Government Solicitor
t 9947 3011
hayley.petrony@vgso.vic.gov.au

James Hird and the future of procedural fairness by private bodies

Though footy may rule Melbourne, the AFL is not part of government.*  So why did James Hird allege that the AFL should have accorded him procedural fairness – an administrative law doctrine – in determining whether he breached the AFL Rules?

Procedural fairness (also known as natural justice) forms part of administrative law, being the body of law that describes how governments must behave.  It is one of the grounds for which an aggrieved party can ask the Supreme Court to review a government decision.  There is a common law presumption that procedural fairness applies to decisions made under statute that affect rights and interests.  But procedural fairness can also apply to private bodies that make decisions affecting rights and interests, such as disciplinary decisions, where such decisions are of a ‘public’ character.

Government lawyers regularly contract with such bodies or provide them with policy guidance, so we thought we'd recap the various ways in which private bodies can be required to accord procedural fairness in their decision making.

The precise steps a private body must take to fulfill its procedural fairness obligations depend, of course, on the relevant facts and circumstances, a topic beyond the scope of this post. Give one of our lawyers a call if you need specific advice on what is required for a particular decision.

Decisions of clubs and societies

The Court may step in to protect due process in decisions made under the rules of trade unions, political parties, racing stewards, sporting associations and professional bodies where financial interests or reputation are at stake, even where the decision-maker is not given powers under statute.  However, this is usually not a judicial review action, but an action for breach of contract, or for unreasonable restraint of trade.

The requirements of procedural fairness can differ for these non-statutory bodies. It depends on their rules and may depend on the decision at hand.  Where a Court determines that procedural fairness would apply to a decision of a club or society, the minimum procedural fairness obligation would include that:

• A person accused should know the nature of any accusation made against him or her;
• The person should be given an opportunity to state his or her case;
• The tribunal should act in good faith.
• The person must have a proper hearing, with access to all evidence against him or her.

When parliament has created a separate requirement that the body must provide procedural fairness

Parliament can create a requirement that a private body must provide procedural fairness if it is to be registered with government, such as s 4.3.1 of the Education and Training Reform Act 2006 for private schools or s 88 of the Cooperatives Act 1996 for co-operatives. This does not provide a basis for judicial review.  However, for example, a parent of a private school student could ask the VRQA to withdraw a private school's registration if it failed to afford procedural fairness to a student.

When a contract between a private body and an individual requires procedural fairness

This will provide the individual with a contractual remedy if procedural fairness is not accorded.  However, it will probably not provide a judicial review remedy, even if the private body was empowered to enter into a contract by a statute. 

What about when governments transfer decision-making responsibilities to outside bodies?

The million dollar question. In Australia the law is unsettled but it looks ripe for growth.

The High Court's 2003 decision of NEAT Domestic Trading found that judicial review will not cover private bodies making decisions simply because the decisions are given force by an enactment.  It will depend on the particular legislation. 

NEAT was a wheat grower who sought permission to export wheat. Under the Wheat Marketing Act 1989, bulk export of wheat was unlawful without the consent of the Wheat Export Authority. The WEA could not give its consent without the approval of a corporation owned by wheat growers, AWB International Ltd.  A 3:2 majority of the High Court found that AWBI's decision to withhold its approval was not a judicially reviewable decision because its capacity to provide an approval was not conferred by the Act but from the companies legislation under which it was incorporated.  This was so even though AWBI's approval was a condition precedent to the WEA consenting under the Act. 

But the case had strong dissents from Gleeson CJ and Kirby J.  And since then, the High Court and the Victorian courts have made noises suggesting judicial review remedies (and thus procedural fairness obligations) follow when governments outsource decision-making…

In the unanimous 2011 decision M61, the High Court found that external contractors making decisions under the Migration Act 1958 were obliged to afford procedural fairness.  This was because the contractors were taking steps under the Act, and because their inquiries had a direct impact on the rights and interests of the plaintiffs, being asylum seekers whose detention was prolonged as a result of the contractors’ inquiries.

In Victoria, there is a growing body of judicial support for the Datafin principle – the idea (from a 1987 English Court of Appeal case) that a decision of a private body may be amenable to judicial review if the decision is made in the performance of a ‘public duty’ or in the exercise of a power which has a ‘public element’. This principle extends judicial review to government decision-makers who act under non-statutory powers and to private regulatory bodies whose functions have a sufficiently public effect.

The two minority judges in NEAT appeared receptive to the logic of the principle, and thus its position in Australia remains unsettled until tackled by the High Court.

But it has some fans in Victoria, Justice Kyrou observing in 2010 that:

the Datafin principle represents a natural development in the evolution of the principles of judicial review. Indeed, it is a necessary development to ensure that the principles can adapt to modern government practices. 

And last year, the Court of Appeal described the principle as ‘appealing’ and ‘logical’ in light of the ‘increasing privatisation of governmental functions in Australia.

Masu Financial Management v Financial Industry Complaints Service No 2 is an example of the types of bodies and decisions that could be caught by the Datafin logic.  In that decision, Shaw J held that a decision of the FICS was amenable to judicial review because it exercised powers of a public nature.  FICS was a private incorporated body responsible for administering a complaints resolution scheme.  It was established by the financial services industry and was not based in statute.

So we think the expansion of procedural fairness obligations to private bodies will be a hot issue in the near future. And not just because plaintiffs want to hang out with the likes of Hirdy in the Supreme Court foyer.

* it may have some quasi-religious status, but that’s another post for another day…

If you are in the Victorian government and need guidance on procedural fairness obligations, please contact:

Penina Berkovic
Principal Solicitor
t 8684 0226
penina.berkovic@vgso.vic.gov.au

The ICT market in the cloud

If your Department is in the market for some information technology and communications (ICT) products and services, you’ll need to master the new eServices Register.

The Register replaces the eServices Panel and eServices Online.  It has been in place since 1 July 2013.  All Departments and agencies must use the new Register for any new ICT procurement.

Unlike the Panel, the Register is open to all companies that agree to the Government's terms and conditions. There is no limit to the number of suppliers on the Register, improving opportunities for small to medium ICT businesses. 

The Register is an online cloud-based portal that allows Government purchasers to provide feedback on service delivery.  Rather than using a formal system of rating for suppliers (which was thought to be too subjective and unfair), the Register allows Government purchasers to see what engagements a supplier has had with other Government project officers. This allows Government users to check with their colleagues about suppliers’ performance.

Purchasers must still define their requirements and issue a Statement of Work (specification) for suppliers to quote on. However, the entire procurement will be conducted within the Register portal.

Former Panel suppliers are already eligible to join the Register.  Joining the Register also enables suppliers to identify possible partners, particularly small and medium companies who may not be able to respond to a request on their own.

Departments have greater flexibility with procurements under the Register.  Use of the Register will be in accordance with departmental procurement plans.  Where department procurement plans are not yet in place, interim approach to market arrangements apply.  These have been determined by the VGPB.

The old online system is accessible only for the completion of existing Panel engagements, including completing end project reporting.

So which contract applies?

• All contracts commenced before 1 July 2013 will continue to be managed and completed under the existing eServices Panel contract.
• Between 1 July 2013 and 31 August 2013, an interim contract is available for use, which will be the same as the existing contract, subject to some small changes to reflect the new arrangements. These include removing references to lead agency oversight and the distinction in service categories. Further, the rates under the Panel arrangements no longer apply. This will be replaced by a new eServices contract. The interim contract and new eServices contract will not be mandatory to use.
• RFPs/RFTs issued by Government agencies before 1 July will continue to operate using the existing contract. Similarly, all existing purchase order contracts will continue to operate for the term of those contracts.
• The new eServices contract is being circulated for consideration. DSDBI has suggested that the new contract should be ready by 1 September 2013. 

For more information about ICT procurement, please contact

Sam Funnell
Managing Principal Solicitor
t 9947 1407
sam.funnell@vgso.vic.gov.au

When is it OK for a public servant to tweet political opinions?

Are you a public servant who uses social media to express political views?  A recent Federal Circuit Court decision involving a pseudonymous Twitter account has once again highlighted the importance for public servants to 'look before you leap' into social media and for Departments to provide clear guidance about political comments by public servants, whether on social media or in other public fora.

The decision

The decision is Banerji v Department of Immigration and it raises more questions than it answers.  Being a Federal Circuit Court decision, it is not binding on State courts or the State Government.  Furthermore, the Court was deciding an application for an injunction and the decision is not a final determination of the limits of a public servant's freedom to engage in social media.  However, the circumstances of a public servant tweeting critical comments about her employer are probably not unique to the federal sphere and it is likely that a Victorian court would consider the case if a similar issue arose with Victorian public servants.  It is therefore a timely reminder to revisit the difficult issue of what kind of online political discussions Victorian public servants may legitimately engage in.

Michaela Banerji works for the Department of Immigration.  She has a Twitter account under the pseudonym @LaLegale.  She used this account to criticise the immigration policies of the Federal Government, the conditions in detention centres and comments made on these issues by various Ministers and government employees.

Ms Banerji claimed the tweets were a ‘simple expression of political opinion, made in her own time away from work’.  The Department claimed that the tweets breached:

• her contract of employment;
• the Department’s Social Media Guidelines; and
• the Australian Public Service’s Code of Conduct.

Judge Neville declined to issue an injunction preventing Ms Banerji’s dismissal on the basis that the application for an injunction was premature, as the internal departmental processes had not yet been finalised. 

Twitter and the implied freedom of political communication

In doing so, his Honour made some brief comments about Ms Banerji's Twitter use, and whether the implied constitutional right of freedom of expression protects it, which set the Twittersphere alight and gave many a public servant pause for thought before pressing 'retweet'.

An implied right to freedom of political communication exists in our Constitution, limiting federal or State ‘laws’, be they exercises of legislative or executive power.  Free communication on matters of government and politics is necessary for the system of representative and responsible government established by s 7 and s 24 of the Constitution, the High Court unanimously reasoned in the 1997 case Lange.  The freedom is not absolute but if limitations are to be imposed on it, those limitations must be ‘reasonably appropriate and adapted’ to maintaining the system of government prescribed by the Constitution.

As his Honour was deciding whether to grant an injunction, Judge Neville did not need to consider whether dismissal of Ms Banerji would be reasonable.  His Honour simply found, without explanation, that the implied freedom did not provide ‘a license… to breach a contract of employment’.

This is an interesting finding. Entry into contracts is a textbook example of an exercise of executive power.  And the implied freedom of political communication can curtail executive power.  This is settled law, even though the only aspect of executive power that has been litigated for infringing the freedom is the exercise of delegated legislative power.

Perhaps some contracts lack a sufficient connection with a ‘law’ to fit within the Lange test.  But Commonwealth public servant employment contracts are so intertwined with Public Service Act 1999 that it is surely arguable that the disciplinary provisions within this Act must be interpreted in line with the freedom.  A discussion for a later judgment, perhaps?

In the meantime, there are only questions and a degree of angst about acceptable online behavior for public servants.  When is tweeting a political opinion OK?  Is there a difference between pseudonymous accounts and accounts that identify the public servant?  What if Ms Banerji had worked for the Department of Treasury while criticising the Department of Immigration?  Perhaps it was the way in which Ms Banerji expressed her tweets, which were described as 'sometimes mocking, sometimes critical'?  Would it have been OK if Ms Banerji had a sufficient disclaimer in her bio? If she was praising her Department rather than criticising? If she was simply re-tweeting the views of others?

How would Ms Banerji have fared if she were a Victorian public servant?

Victorian public servants are bound by the Code of Conduct for Victorian Public Sector Employees (No 1) 2007, the Public Service Standards Commissioner’s ‘Guidance for use of social media in the Victorian public sector’ and individual Departmental policies, such as the Department of Justice’s Social Media Policy.

Clause 2.2 of the Code requires public servants to ‘conduct themselves in an apolitical manner' and to avoid 'in the course of their work, any participation in activities which support a political party or independent candidates including attendance at fund raising or similar events’.  Whilst Ms Banerji was expressing political views, she claimed not to be doing so in the course of her employment - although it is interesting to note that Ms Banerji is a 'public affairs officer' responsible for communicating the Department's message.  Ms Banerji's tweets were not in support of a political party or candidate.

Clause 3.5 of the Code states: ‘When making a comment in a private capacity, public sector employees ensure their comments are not related to any government activity that they are involved in or connected with as a public sector employee and make it clear they are expressing their own view. They ensure personal comments do not compromise their capacity to perform their public sector role in an unbiased manner’.  Ms Banerji was tweeting on matters relating to government activity with which she was connected.  But did her views prevent her carrying out her role without bias?

The Department of Justice policy that public servants should not ‘make any comment or post any material that might otherwise cause damage to the department's reputation or bring it into disrepute’ is stated to apply only ‘[w]here your comments or profile can identify you as a public servant’. 

The issue of how much political discussion is too much for a public servant has always been a difficult one, with clues to the answer lying in the Constitution Act 1975, the Public Administration Act 2004, the Charter of Human Rights and Responsibilities Act 2006, the VPS Code of Conduct and Departmental policy.  The issue is not a new one, but social media has made it more visible.

While the answers remain elusive, Victorian public servants engaging in online or offline political discussion would be wise to read and regularly re-read the VPS Code of Conduct and their Department's policies and to 'think before you tweet'.  Victorian departments and agencies should also regularly review their social media and other policies to check whether they are providing useful and specific guidance on how their employees may participate in political discussions in their private lives.

For advice on social media use by Government and public servants, please poke:

Katie Miller
Principal Solicitor
t  8684 0460 
katie.miller@vgso.vic.gov.au