KIEFEL CJ, BELL, KEANE AND NETTLE JJ. This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") removed into this Court pursuant to s 40(1) of the Judiciary Act 1903 (Cth) on the application of the Attorney-General of the Commonwealth (intervening). The question for decision is whether, as the Tribunal held, ss 10(1), 13(11) and 15(1) of the Public Service Act 1999 (Cth) as at 15 October 2012 ("the impugned provisions") imposed an unjustified burden on the implied freedom of political communication, with the result that the termination of the respondent's employment with the Commonwealth for breaching the Australian Public Service ("APS") Code of Conduct was not reasonable administrative action taken in a reasonable manner with respect to her employment within the exclusion in s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Compensation Act"). For the reasons which follow, the impugned provisions did not impose an unjustified burden on the implied freedom of political communication, and the termination of the respondent's employment with the Commonwealth was not unlawful.
The facts
The uncontroversial facts of the matter were as follows. On 10 April 2006, the respondent was offered and accepted employment as an ongoing APS 6 employee within the Ombudsman and Human Rights and Equal Opportunity Commission Section of what became the Department of Immigration and Citizenship ("the Department"). She commenced work in that position on 29 May 2006. At some time prior to 7 March 2012, she began broadcasting tweets on matters relevant to the Department, using the Twitter handle "@LaLegale". There were more than 9,000 such tweets, at least one of which was broadcast during the respondent's working hours, and many of which were variously critical of the Department, other employees of the Department, departmental policies and administration, Government and Opposition immigration policies, and Government and Opposition members of Parliament. The Tribunal found that "[s]ome of the tweets are reasonably characterised as intemperate, even vituperative, in mounting personal attacks on government and opposition figures".
On 7 March 2012, the Workplace Relations and Conduct Section of the Department ("the WRCS") received a complaint from one of its employees, which was copied to the National Communications Manager, alleging that the respondent was inappropriately using social media in contravention of the APS Code of Conduct. After reviewing the complaint, the Director, WRCS determined that the complaint did not contain sufficient material to proceed with a formal APS Code of Conduct investigation, and advised the complainant of his determination.
On 9 May 2012, the WRCS received a second, more detailed complaint regarding the respondent's conduct. On the basis of that complaint, on or around 15 May 2012, the Director determined to initiate an investigation into whether the respondent's conduct gave rise to possible breaches of the APS Code of Conduct, and, on 23 July 2012, the WRCS informed the respondent of the Director's determination.
Between 15 May 2012 and 13 September 2012, the Assistant Director, WRCS conducted the investigation into whether the respondent's conduct gave rise to possible breaches of the APS Code of Conduct and prepared an investigation report dated 13 September 2012. On 20 September 2012, the Director, Workforce Design and Strategy, being an authorised delegate of the Secretary of the Department, sent a letter to the respondent setting out a proposed determination of breach of the APS Code of Conduct and inviting the respondent to provide a response. On the same day, the respondent sent an email to the WRCS responding to the proposed determination of breach. On 15 October 2012, the delegate determined that the respondent had breached the APS Code of Conduct and proposed a sanction of termination of employment. The respondent was provided with the determination and given seven days to provide a response.
On 19 October 2012, the Director, WRCS and the delegate met the respondent and her union representative at the respondent's request. During that meeting, the respondent admitted to having broadcast tweets under the handle @LaLegale in which she criticised Government immigration policy and her direct departmental supervisor, and, on the same day, the respondent sent an email to the complainant offering an "unreserved" apology. Thereafter, she sought and was granted a number of extensions of time in which to provide a response to the proposed determination of sanction. The last extension granted was until 2 November 2012. On 1 November 2012, the respondent instituted proceedings in the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) seeking interim and final injunctions to restrain the Department from proceeding with the proposed sanction of termination of her employment.
On 2 November 2012, the respondent submitted a response to the proposed sanction of termination of employment. On the same day, her representative, the Media, Entertainment and Arts Alliance, also submitted a written response to the proposed determination of sanction, and, on 9 November 2012, submitted a further response. On 11 November 2012, the respondent submitted another response dated 9 November 2012. On 17 November 2012, she sent an email to the Director, WRCS withdrawing her admission and apology and alleging that the process underlying the APS Code of Conduct investigation and termination decision was flawed.
On 9 August 2013, the Federal Circuit Court rejected the respondent's claim for interim injunction. On 15 August 2013, the Director, WRCS wrote to the respondent setting out the steps which the Department proposed to take to finalise the process relating to the respondent's breaches of the APS Code of Conduct. The letter stated that the delegate would consider all of the information provided by and on behalf of the respondent in response to the 15 October 2012 determination, that the delegate would then write to the respondent advising her of the proposed sanction (if any) and inviting her to make any further submissions she may wish to make concerning it, and that the delegate would thereafter complete the review process and make a final determination as to the sanction to be imposed. The letter also stated that any sanction would not be implemented until 14 days after the delegate had made the determination. On 26 August 2013, the delegate provided the respondent with a further opportunity to respond to the proposed sanction of termination in line with the process set out in the letter of 15 August 2013, and, on 30 August 2013, the respondent provided a further response. On 12 September 2013, the delegate wrote to the respondent setting out the delegate's decision to impose a sanction of termination of employment under s 15 of the Public Service Act.
On 13 September 2013, the Director, WRCS (who at that time was acting as the Assistant Secretary, People Services and Systems Branch, and held a delegation under s 78(7) of the Public Service Act to exercise the power to make decisions under s 29(1)) wrote to the respondent providing her with notice of termination of employment to take effect from close of business on 27 September 2013. On 28 March 2014, the respondent entered into a Deed of Agreement with the Commonwealth of Australia represented by the Department to settle the proceedings in the Federal Circuit Court.
On 18 October 2013, the respondent lodged a claim for compensation under s 14 of the Compensation Act for an "injury" within the meaning of s 5A(1) of the Compensation Act, said to be comprised of an "adjustment disorder characterised by depression and anxiety" being an aggravation of an underlying psychological condition arising out of termination of the respondent's employment.
On 24 February 2014, a delegate of the appellant rejected the claim for compensation, and, on 1 August 2014, another delegate of the appellant affirmed that determination, on the basis that the termination of the respondent's employment was reasonable administrative action taken in a reasonable manner in respect of the respondent's employment, within the meaning of s 5A(1) of the Compensation Act, and, consequently, that such injury as the respondent may have suffered (if any) was not an "injury" within the meaning of that section.
Relevant statutory provisions
Section 14 of the Compensation Act provided, so far as is relevant, that the appellant is liable to pay compensation in accordance with the Compensation Act in respect of an "injury" suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 5A(1) of the Compensation Act defined "injury" as including, in substance, an aggravation of a mental injury that arose out of, or in the course of, employment, but as excluding any such aggravation as is suffered as a result of reasonable administrative action taken in a reasonable manner in respect of an employee's employment.
Section 10 of the Public Service Act defined the APS Values, so far as is relevant, as follows:
"(1) The APS Values are as follows:
(a) the APS is apolitical, performing its functions in an impartial and professional manner;
...
(g) the APS delivers services fairly, effectively, impartially and courteously to the Australian public and is sensitive to the diversity of the Australian public".
Section 13 of the Public Service Act set out the APS Code of Conduct, so far as is relevant, as follows:
"(1) An APS employee must behave honestly and with integrity in the course of APS employment.
...
(7) An APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment.
...
(11) 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."
Section 15 of the Public Service Act provided for the establishment of procedures for the determination of breach, in sub-s (3), and prescribed the sanctions available, subject to any limitations in the regulations, as follows:
"(1) An Agency Head may impose the following sanctions on an APS employee in the Agency who is found (under procedures established under subsection (3)) to have breached the Code of Conduct:
(a) termination of employment;
(b) reduction in classification;
(c) re-assignment of duties;
(d) reduction in salary;
(e) deductions from salary, by way of fine;
(f) a reprimand."
Departmental and APS guidelines
Both the Public Service Commissioner and the Department promulgated guidelines to assist employees in complying with their obligations under the Public Service Act. At relevant times, the departmental guidelines explained that "[p]ublic comment, in its broadest sense, includes comment made on political or social issues at public speaking engagements, during radio or television interviews, [and] on the internet", and cautioned that it was not appropriate for a Department employee to make unofficial public comment that is, or is perceived as, compromising the employee's ability to fulfil his or her duties professionally in an unbiased manner (particularly where comment is made about Department policy and programmes); so harsh or extreme in its criticism of the Government, a member of Parliament or other political party and their respective policies that it calls into question the employee's ability to work professionally, efficiently or impartially; so strongly critical of departmental administration that it could disrupt the workplace; or unreasonably or harshly critical of departmental stakeholders, their clients or staff. Similar, more extensive guidance was provided in Australian Public Service Commission Circular 2012/1 ("the APS Guidelines"), which recorded that, "[a]s 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". In turn, the tenor of the APS Guidelines was further reiterated for employees of the Department in a document entitled "'What is Public Comment?' Workplace Relations and Conduct Section Fact Sheet".
The proceedings before the Tribunal
Before the Tribunal, the parties were agreed that the only issue for the Tribunal was:
"whether or not the termination of the [respondent's] employment with the Commonwealth falls outside the exclusion in s 5A(1) of the Act, having regard to the implied freedom of political communication."
It is unfortunate that the issue was framed in those terms for it appears to have led the Tribunal to approach the matter, wrongly, as if the implied freedom of political communication were a personal right like the freedom of expression guaranteed by ss 1 and 2(b) of the Canadian Charter of Rights and Freedoms or the freedom of speech guaranteed by the First Amendment to the Constitution of the United States. Thus, in their reasons for decision, the Tribunal spoke in terms of the impugned provisions imposing a "serious impingement on Ms Banerji's implied freedom", and stated that "[t]he burden of the Code on Ms Banerji's freedom was indeed heavy". The Tribunal reasoned that Canadian jurisprudence as to the balance to be struck between an individual government employee's "duty of fidelity and loyalty" and the "countervailing rights of public servants to take part in a democratic society" was "illuminative of the appropriate balance to be struck between the implied freedom and the fostering of an apolitical [Australian] public service". And, ultimately, the Tribunal decided the matter, erroneously, on the basis "that the use of the Code as the basis for the termination of Ms Banerji's employment impermissibly trespassed upon her implied freedom of political communication".
As has been emphasised by this Court repeatedly, most recently before the Tribunal's decision in this matter in Brown v Tasmania, the implied freedom of political communication is not a personal right of free speech. It is a restriction on legislative power which arises as a necessary implication from ss 7, 24, 64 and 128 and related sections of the Constitution and, as such, extends only so far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution. Accordingly, although the effect of a law on an individual's or a group's ability to participate in political communication is relevant to the assessment of the law's effect on the implied freedom, the question of whether the law imposes an unjustified burden on the implied freedom of political communication is a question of the law's effect on political communication as a whole. More specifically, even if a law significantly restricts the ability of an individual or a group of persons to engage in political communication, the law will not infringe the implied freedom of political communication unless it has a material unjustified effect on political communication as a whole.
For that reason, the way in which the Tribunal decided the matter was misconceived and the Tribunal's decision must be set aside.
The respondent's contentions
Before this Court, the respondent did not contend that the question of whether the impugned provisions impose a burden on the implied freedom of political communication should be decided on any basis other than the effect of the impugned provisions on political communication as a whole. Instead, she sought to argue that, upon their proper construction, the impugned provisions did not apply to what she characterised as "anonymous" communications - being "communications whose immediate context evinces no connection to the speaker's status as an APS employee (eg by giving her or his name, or position as a public servant)" - and that, because the tweets which she broadcast did not ex facie disclose her true name or the fact of her being an employee of the APS, they were "anonymous" communications to which the impugned provisions did not apply. In the alternative, the respondent contended that, insofar as the impugned provisions purported to authorise sanctions against an APS employee for "anonymous" communications, they imposed an unjustified burden on the implied freedom of political communication and were for that reason invalid. In the further alternative, the respondent argued that, if the impugned provisions did not of themselves impose an unjustified burden on the implied freedom, the decision to terminate the respondent's employment as an employee of the APS on the basis of her "anonymous" communications was vitiated by the decision maker's failure explicitly to take into account the effect of the implied freedom.
The construction argument
For reasons given in the course of the hearing, the Court declined to entertain the respondent's argument that the impugned provisions did not extend to "anonymous" communications. The Court did so because the argument differed fundamentally from the way in which the respondent put her case before the Tribunal and because, if she had put it that way before the Tribunal, it is not improbable that the appellant would have called evidence illustrative of the damage to reputation and integrity of the APS likely to have been caused by so‑called anonymous tweets of the kind broadcast by the respondent. Lest it be thought, however, that the respondent was thereby deprived of a real chance of demonstrating that her employment was not lawfully terminated, there is no reason to suppose that "anonymous" communications cannot fail to uphold the integrity and good reputation of the APS within the meaning of the impugned provisions.
As was explained in detail in the guidelines to APS employees earlier set out (which were before the Tribunal), as a rule of thumb, 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 risk of identification which justifies that rule of thumb is obvious, and it is borne out by the facts of this case. Further, as was also explained in the guidelines to APS employees, and, too, is obvious, where an APS employee broadcasts tweets which are harsh or extreme in their criticism of the Government or Opposition or their respective policies, or of individual members of Parliament whatever their political persuasion, and the nature of the author's employment is later discovered, as it was in this case, the fact that an employee of the APS is then seen to have engaged in conduct of that kind is bound to raise questions about the employee's capacity to work professionally, efficiently and impartially; is likely seriously to disrupt the workplace; and, for those reasons, is calculated to damage the integrity and good reputation of the APS. And, where the employee broadcasts tweets commenting on policies and programmes of the employee's Department or which are critical of the Department's administration, damage to the good reputation of the APS is apt to occur even if the author's identity and employment are never discovered. In light of these considerations, it would be facile to suppose a parliamentary intention to exclude communications of the kind broadcast by the respondent.
The implied freedom argument
The respondent's first alternative implied freedom argument also faces difficulties at a number of levels. To begin with, contrary to the assumption which is implicit in the argument, s 13(11) does not purport to proscribe all forms of "anonymous" communications: only those which fail to "uphold" the APS Values and the integrity and good reputation of the APS within the meaning of s 13(11) of the Public Service Act.
Secondly, as was observed by the Solicitor-General of the Commonwealth, appearing on behalf of the Attorney-General of the Commonwealth (intervening), there are undoubtedly some forms of "anonymous" communication that would so damage the integrity and good reputation of the APS that, on any view of the matter, their proscription would be justified. An example would be a Permanent Secretary broadcasting "anonymous" tweets which are highly disparaging of the Minister, the Government or Opposition, Government or Opposition policy, departmental administration or implementation of policy, or departmental staff, where the identity of the author is later discovered. As that example demonstrates, it is in each case a question of fact and degree whether or not a given "anonymous" communication infringes s 13(11) by failing to uphold the APS Values and the integrity of the APS.
Thirdly, and critically, the respondent did not contend before the Tribunal or before this Court that, apart from the implied freedom, it would not be within the legislative competence of the Commonwealth Parliament to enact legislation in the form of s 13(11) of the Public Service Act requiring APS employees at all times to behave in a way that upholds the APS Values and the integrity and good reputation of the APS. Nor did the respondent contend before the Tribunal or before this Court that, apart from the implied freedom, the sanction of dismissal imposed on her under s 15 of the Public Service Act for her contravention of s 13(11) of that Act would not be a lawful, proportionate response to the nature and gravity of her misconduct. Consequently, as the matter was presented to the Tribunal and this Court, the respondent must be taken to have accepted that her conduct in broadcasting the "anonymous" tweets was conduct which failed to uphold the APS Values and the integrity and good reputation of the APS within the meaning of s 13(11) and that, but for the implied freedom, the sanction of dismissal was warranted.
In the result, the respondent's implied freedom argument amounts in effect to saying that, despite the fact that her conduct in broadcasting the "anonymous" tweets was conduct which failed to uphold the APS Values and the integrity and good reputation of the APS, Parliament was precluded from proscribing the conduct because its proscription imposed an unjustified burden on the implied freedom of political communication. To say the least, that is a remarkable proposition.
No unjustified burden on the implied freedom
Effective burden
A law which prohibits or limits political communication to any extent will generally be found to impose an effective burden on the implied freedom of political communication. The appellant, before the Tribunal and again before this Court, and the Attorney-General of the Commonwealth (intervening) accepted that s 10(1) in combination with s 13(11) imposes an effective burden on the implied freedom. That concession was rightly made. The restrictions which s 10(1) in conjunction with s 13(11) imposes on the ability of employees of the APS to engage in public comment on government and political matters must have a material effect on the totality of political communication. The question is whether that burden is justified according to the two part test of whether the impugned law is for a legitimate purpose consistent with the system of representative and responsible government mandated by the Constitution and, if so, whether that law is reasonably appropriate and adapted to the achievement of that objective.
Legitimate purpose
Section 3 of the Public Service Act proclaims the "main objects" of the Act, which include establishing "an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public", providing "a legal framework for the effective and fair employment, management and leadership of APS employees", and establishing "rights and obligations of APS employees". As appears from the text and context of ss 10(1), 13(11) and 15(1), the legislative purpose of those provisions is to ensure that employees of the APS at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS. And as has been seen, the APS Values are attuned to the maintenance and protection of an apolitical public service that is skilled and efficient in serving the national interest.
There can be no doubt that the maintenance and protection of an apolitical and professional public service is a significant purpose consistent with the system of representative and responsible government mandated by the Constitution. Section 64 of the Constitution, which provides for the establishment of departments of state, and s 67, which provides for the appointment and removal of officers of the Executive Government other than Ministers, attest to the significance of the APS as a constituent part of the system of representative and responsible government mandated by the Constitution. The constitutional significance of the APS is also to be understood in light of the Northcote‑Trevelyan British civil service reforms of the mid-nineteenth century, which had been adopted by some of the Australian colonies by the time of Federation and which were almost immediately after Federation adopted by the Commonwealth. Thus, as was observed in Federal Commissioner of Taxation v Futuris Corporation Ltd, apolitical, skilled and efficient service of the national interest has been the ethos of the APS throughout the whole period of the public administration of the laws of the Commonwealth.
Appropriate and adapted
A law may be regarded as reasonably appropriate and adapted or proportionate to the achievement of a legitimate purpose consistent with the system of representative and responsible government if the law is suitable, necessary and adequate in its balance.
(i) Suitability
A law is suitable in that sense if it exhibits a rational connection to its purpose, and a law exhibits such a connection if the means for which it provides are capable of realising that purpose.
Regardless of the political complexion of the government of the day, or its policies, it is highly desirable if not essential to the proper functioning of the system of representative and responsible government that the government have confidence in the ability of the APS to provide high quality, impartial, professional advice, and that the APS will faithfully and professionally implement accepted government policy, irrespective of APS employees' individual personal political beliefs and predilections. To the same end, it is most desirable if not essential that management and staffing decisions within the APS be capable of being made on a basis that is independent of the party political system, free from political bias, and uninfluenced by individual employees' political beliefs. The requirement imposed on employees of the APS by ss 10(1) and 13(11) of the Public Service Act at all times to behave in a way that upholds the APS Values and the integrity and good reputation of the APS represents a rational means of realising those objectives and thus of maintaining and protecting an apolitical and professional public service. The impugned provisions are suitable in the necessary sense.
(ii) Necessity
Where, as here, a law has a significant purpose consistent with the system of representative and responsible government mandated by the Constitution and it is suitable for the achievement of that purpose in the sense described, such a law is not ordinarily to be regarded as lacking in necessity unless there is an obvious and compelling alternative which is equally practicable and available and would result in a significantly lesser burden on the implied freedom. Here, the respondent's argument that the impugned provisions impose an unjustified burden on the implied freedom of political communication by proscribing "anonymous" communications thus reduces in effect to a submission that an obvious and compelling alternative to the impugned provisions would be to exclude "anonymous" communications from their scope of application.
The argument must be rejected. For the reasons earlier given, "anonymous" communications are at risk of ceasing to be anonymous, and thereby damaging the integrity and good reputation of the APS as an apolitical and professional public service. Further, as has been explained, depending on the circumstances and content of an "anonymous" communication, the communication may damage the good reputation of the APS even while it remains anonymous. Consequently, if the impugned provisions were restricted in their operation to communications other than "anonymous" communications, the impugned provisions would cease to operate as a deterrent against a significant potential source of damage to the integrity and good reputation of the APS. Restricting their operation to communications other than "anonymous" communications is for that reason not an obvious and compelling alternative to their present form.
In addition, it is to be observed for the sake of completeness that, to the extent that the respondent's argument proceeds upon an assumption that "anonymous" communications are more deserving of protection by the implied freedom than communications for which the speaker acknowledges responsibility, that assumption is not necessarily sound.
(iii) Adequacy in balance
If a law presents as suitable and necessary in the senses described, it is regarded as adequate in its balance unless the benefit sought to be achieved by the law is manifestly outweighed by its adverse effect on the implied freedom. In this case, that directs attention to the quantitative extent of the burden and the importance of the impugned provisions to the preservation and protection of the system of representative and responsible government mandated by the Constitution.
In the course of argument, reference was made to the question of whether the quantitative extent of the burden imposed by the impugned provisions was affected by the range of sanctions capable of being imposed under s 15. On one view of the matter, the issue of penalty is beside the point. If a law prohibits an employee of the APS from commenting publicly in a manner which fails to uphold the integrity and reputation of the APS, the law restricts the ability of the APS employee lawfully to engage in governmental and political communication regardless of whether the penalty for contravention is large or small. On another view of the matter, however, penalty is relevant because the question of whether a law imposes a burden on the implied freedom is to be assessed according to the terms and practical effect of the law and the greater the penalty the more likely it will be that the law operates as a significant deterrent to political communication. A third possibility is that the relevance of penalty will depend on the particular circumstances of a case. Here, it may be assumed that the extent of penalty is relevant. But for reasons to be explained, the penalties that may be imposed under s 15 do not suggest that the impugned provisions are not adequate in their balance.
Section 15 of the Public Service Act provides for a range of penalties and for the selection and imposition of the appropriate penalty by the Agency Head in the exercise of discretion. As a matter of law, that discretion must be exercised reasonably and, therefore, according to the nature and gravity of the subject contravention. As with other civil penalties, the essence of the task is to put a price on the contravention sufficiently high to deter repetition by the contravenor and others who might be tempted to contravene, but bearing in mind that a penalty of dismissal must not be "harsh, unjust or unreasonable". Unquestionably, there are cases of breach of s 13(11) that are so serious in the damage done to the integrity and good reputation of the APS that the only appropriate penalty is termination of employment. The instance earlier cited of a Permanent Secretary who publicly engages in trenchant criticism of the Secretary's Minister, Government policy or departmental administration is an obvious example. By contrast, in other cases the level of the employee involved and the nature of the conduct in issue may be such that nothing more than a reprimand is warranted. And of course between those two extremes lies a range of possible situations warranting the imposition in the reasonable exercise of discretion of differing penalties according to the particular facts and circumstances of the matter. It is not the case that every employee of the APS who commits a breach of s 13(11) by broadcasting public "anonymous" communications is liable to be dismissed. Nor is it the case that the impugned provisions provide for the imposition of a penalty which is not proportionate to the contravention. Breach of the impugned provisions renders an employee of the APS liable to no greater penalty than is proportionate to the nature and gravity of the employee's misconduct.
Section 15(3) provides for the establishment of procedures that comply with basic procedural requirements set out in Commissioner's Directions, have due regard to procedural fairness, and may differ for different categories of APS employee. An Agency Head is required to take reasonable steps to ensure that every APS employee in the Agency has ready access to the documents that set out these procedures. The assessment of whether there has been a breach of s 13(11) must be undertaken in accordance with those published procedures, and, if the relevant employee is dissatisfied with the determination, the employee has a right of internal review, a further right of Tribunal merits review under s 33 - except in the case of termination of employment, in which event the employee has rights under Pt 3.2 of the Fair Work Act 2009 (Cth) for redress for unfair dismissal on the ground of it being "harsh, unjust or unreasonable" - and a right of judicial review.
Given the impugned provisions have a significant purpose consistent with the system of representative and responsible government mandated by the Constitution, and are necessary in the sense that there is no obvious and compelling alternative, there is nothing about the procedures for the assessment of the nature and gravity of contravention of s 13(11) or the imposition of the appropriate penalty in accordance with the procedures for which s 15 provides that at all supports the idea that the benefit sought to be achieved by the impugned provisions is manifestly outweighed by their effect on the implied freedom. To the contrary, the impugned provisions, including their prescription of the range of penalties and the procedures for the assessment of breach and the imposition of penalty and review, present as a plainly reasoned and focussed response to the need to ensure that the requirement of upholding the APS Values and the integrity and good reputation of the APS trespasses no further upon the implied freedom than is reasonably justified.
Exercise of discretion under s 15
It remains to deal with the respondent's further alternative contention that the decision to terminate her employment as an employee of the APS was vitiated by the decision maker's failure to take the implied freedom into account in determining the sanction to be imposed under s 15 for breach of s 13(11). Counsel submitted that the implied freedom is an essential mandatory consideration in the exercise of the discretion and, therefore, that a decision maker's failure to consider the implied freedom constitutes a jurisdictional error which vitiates the decision. Alternatively, it was submitted that, even if that were not so, the implied freedom operates as an outer limit on the range of penalties open to be imposed in exercise of the decision maker's discretion, and that, in this case, the decision maker imposed an excessive penalty of dismissal which lay beyond the boundary of the implied freedom.
The first of those submissions must be rejected. No doubt in one sense the implied freedom imposes a limit on the sanctions that may be imposed for a breach of s 13(11) constituted of a failure to uphold the APS Values prescribed in s 10(1). If s 15(1) provided for sanctions that were not reasonably justified having regard to the implied freedom of political communication, it may be accepted that s 15(1) would be invalid and any penalty imposed under it would be unlawful, or at least unlawful to the extent that the penalty went further than was warranted by the implied freedom. But as has been explained, the prohibitions imposed by s 13(11) operating in conjunction with s 10(1) are proportionate to achieving the significant purpose of maintaining and protecting an apolitical public service skilled and efficient in serving the national interest, and the prescription of sanctions in s 15(1) that may be imposed according to law for a contravention of s 13(11) trespasses no further upon the implied freedom than is reasonably justified. Consequently, provided a decision maker imposing a penalty under s 15 acts reasonably, and so in accordance with the legal requirement that the penalty be proportionate to the nature and gravity of the contravention and the personal circumstances of the employee, there can be no risk of infringement of the implied freedom. If a decision maker imposes a manifestly excessive penalty, it will be unlawful because the decision maker has acted unreasonably, not because of the decision maker's failure to turn his or her mind to, or failure expressly to mention, the implied freedom.
So to conclude does not mean that the implied freedom may not be a relevant consideration in the exercise of different discretions under other legislation. Whether it is may depend on the terms of the legislation and the nature and scope of the discretion. But for the reasons stated, it is no part of a decision maker's function in imposing penalty under s 15 to take the implied freedom into account. The task is to impose a penalty which accords to the nature and gravity of the subject breach and the personal circumstances of the employee in question.
For similar reasons, the remainder of the respondent's further alternative contention should be rejected. As has been observed, due to the way in which the respondent conducted her case before the Tribunal, the respondent must be taken to have accepted that her conduct in broadcasting the "anonymous" tweets was conduct which failed to uphold the APS Values and the integrity and good reputation of the APS within the meaning of s 13(11), and that, but for the implied freedom, the sanction of dismissal was warranted. It is too late now for the respondent to be permitted to contend for the first time, as it were on ultimate appeal, that the penalty imposed on her did not accord to the nature and gravity of her contraventions of ss 10(1) and 13(11) or her personal circumstances. She must be taken to have accepted that they did and, consequently, that the penalty imposed was in accordance with those provisions and so within the limits set by the implied freedom.
Conclusion
It follows that the appeal should be allowed. The decision of the Tribunal should be set aside. In its place, the reviewable decision of 1 August 2014 should be affirmed. The respondent should pay the appellant's costs of the appeal.