Comcare v Banerji: Public Servants and Political Communication

Abstract

In March 2019 the High Court of Australia will, for the first time, consider the constitutionality of limitations on the political expression of public servants. Comcare v Banerji will shape the Commonwealth of Australia’s regulation of its 240 000 public servants and indirectly impact state and local government employees, cumulatively constituting 16 per cent of the Australian workforce. But the litigation’s importance goes beyond its substantive outcome. In Comcare v Banerji, the High Court must determine the appropriate methodology to apply when considering the implied freedom of political communication’s operation on administrative decisions. The approach it adopts could have a significant impact on the continuing development of implied freedom jurisprudence, as well as the political expression of public servants.