7 August 2019

Canberra woman Michaela Banerji loses in High Court free speech appeal over APS sacking

| Genevieve Jacobs
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The High Court has dismissed Michaela Banerji’s appeal against being dismissed for tweeting anonymous political criticism. File photo.

In a finding with substantial implications for public servants everywhere, Canberra woman Michaela Banerji’s dismissal for anonymously tweeting critical opinions about immigration and border policies has been upheld by the High Court.

She had been sacked from her job with the Department of Immigration and Citizenship for breaching the public service code of conduct, requiring public servants to be apolitical at all times.

The long running legal saga began in the Federal Court in 2013, when Banerji’s application for an injunction to stop her termination was rejected by judge Warren Neville who said there was no “unbridled right” to free speech.

After her dismissal, Banerji then claimed workers compensation and was successful at the Administrative Appeals Tribunal. AAT deputy president (and former ACT Senator) Gary Humphries and tribunal member Bernard Hughson concluded that “a comment made anonymously cannot rationally be used to draw conclusions about the professionalism or impartiality of the public service”.

The AAT went further, drawing parallels between George Orwell and his concerns around thought crime and the idea of policing anonymous APS employees’ social media.

But an appeal from Comcare succeeded today, when the High Court unanimously upheld the decision to sack Banerji for the tweets from her @LaLegale account. It’s being seen as a landmark test case since the High Court did not use the constitutionally implied freedom of speech to find that the sacking was unjustified.

Chief justice, Susan Kiefel, and Justices Virginia Bell, Patrick Keane and Geoffrey Nettle found that anyone who posts on social media should assume their identity and public employment could potentially be revealed, creating an “obvious” risk that even anonymous social media could damage the public service and therefore contravene the code of conduct.

Speaking before the finding, ANU Law visiting fellow Kieran Pender said the Banerji case was “a really tricky issue that ultimately comes down to the balance between free speech and a legitimate government interest in an impartial and effective administration.

“There are strong reasons why the government doesn’t want public servants expressing their political opinions all the time. And that’s been long accepted by the courts…But public servants can’t be silent members of society. They are ordinary citizens too. They deserve to be involved in debate, and often they are best placed to comment and contribute to democratic discourse.”

Mr Pender said the issue required a clear decision from the High Court because of its complexity.

“This isn’t black and white,” he said. “It’s a question of where you draw the line between two very compelling policy priorities. Until we have the High Court clarity, the line is blurry and that encourages the government to overreach.”

Today, separate judgements from Justices Stephen Gageler and James Edelman noted the substantial burden the public sector gag imposes but agreed it was “reasonably necessary and adequately balanced”.

The APS Commission provides public servants with detailed social media guidelines, but commentators say the case reaffirms that there are legally binding regulations which ultimately supersede these.

The Commission has warned that it’s relatively easy for an experienced user to identify who someone is and where they work, and that Departments are often very willing to make that effort to identify internal critics.

The case comes as Canberra lawyer Bernard Collaery faces the ACT Supreme Court on charges of conspiracy for the advice he provided to Witness K in the Timor L’Este spying case, and his decision to speak to the media about concerns that Australia had acted unethically in negotiations over Timor Gap gas fields.

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@LaLegale’s tweets were rabidly partisan and obsessive and I’m not surprised at the High Court verdict. If you look at her recent tweets she is really off the leash – retweeting far-left material calling for politicians to be tried for war crimes. She isn’t a good test case at all for the average public servant tweeting in good faith. We still don’t know what the limits are for reasonable people. I actually don’t think an impartial public servant could possibly have consistently tweeted the way Ms Banerji did over several years.

If you believe in free speech you believe in it for everything including for “far left material calling for politicians to be tried for war crimes”.

Everyone is in favour of free spech for opinions they agree with.

HiddenDragon6:47 pm 08 Aug 19

The majority decision in the HC case seems to be fairly closed tied to the provisions in the Constitution for a federal public service, which presumably means that the decision is less clear cut in relation to Territory and State officials – which is a comfort, because it would be sad to think that the Riot Act, etc. might be denied the frank, fearless, forthright, impartial etc. etc. etc. contributions from ACT PS employees which do so much to inform us about the unerring wisdom of ACT Government policies……..

It’s not a surprise that the high court ruled on provisions in the constitution because that was the basis of the defence case.

Written and spoken by a non ACTPS person.

rationalobserver4:10 pm 08 Aug 19

Banning public servants from using social media ! What will they do during work time now?

Government Servants are accepting salary and wages to enact the policies of the Government of the day. This may entail enacting policies the individual believes to be wrong in which case they should resign.

No Government Servant has the right of “free speech” or of criticizing their employer during the time they spend in the workplace, Banerji did that. If any of my employees did that I would immediately sack them. It is entirely reasonable for an employer to expect the loyalty of employees.

Not all government policy is “nice”. Government must make unpopular, unpalatable decisions. Employees must accept that.

Before social media there were dinner parties. It’s a totally unacceptable condition of the code and it is not enforced unless management doesn’t like what you say.

Has anyone checked if there is a specific exemption for election days? Because anonymity is not sufficient to allow the expression of opinion by public servants.

This sets a dangerous precedent Undermining our democracy and the public’s trust in Government.
We need to seriously consider implementing a Bill of Rights, and an updating the Australian Constitution to bring it in line with the values of the 21st-century.

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