Nope, freedom of political communication does not override the public service rules

By Stephen Easton

Wednesday August 7, 2019

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The High Court has ruled that federal public servants have no right to political expression that overrides their legal obligations to be impartial and uphold the values, integrity, and good reputation of the Australian Public Service.

The court unanimously held it was reasonable for the former Department of Immigration and Citizenship to sack Michaela Banerji in 2013 on the basis that she had breached her obligations as a public servant through comments made via her Twitter account, @LaLegale.

This overturns a decision of the Administrative Appeals Tribunal last year that found Banerji’s termination was not reasonable, on the basis that it infringed on the limited right to “freedom of political communication” which the High Court has previously found by reading between the lines of the constitution.

The AAT decided Banerji was eligible to claim workers’ compensation for psychological injury resulting from the disciplinary action. The government’s workplace insurer, Comcare, which had previously rejected her application for compensation on the basis that her sacking was reasonable administrative action, appealed to the High Court.

In last year’s ruling, tribunal members accepted that Banerji’s Twitter account was sufficiently anonymous to avoid breaking the public service rules. They decided her efforts to conceal her identity meant “almost all of the public policy considerations” behind the restrictions on public servants did not apply to her tweets as @LaLegale.

Banerji had previously applied to the Federal Court for an injunction that would have prevented her dismissal but lost that case. In judge Warren Neville’s view, Banerji had imagined an “unbridled right” to free speech that does not exist in Australia.

The stakes were high, and if the High Court had taken the same view as the AAT, the legal precedent would have been huge, as Canberran workplace lawyer John Wilson explained in The Mandarin. Wilson believed the argument around anonymity had some merit, as it would have been difficult for a member of the public to unmask Banerji, as the department did after other staff members found clues linking her to the Twitter account.

The High Court did not agree, so its ruling does not dramatically change the status quo but stands as a guide to how the Public Service Act limits free speech for those who work under it.

It reaffirmed that in this particular case, it was reasonable for the department to sack Banerji when it became clear that she was behind the commentary.

As pointed out by the assistant national secretary of the Community and Public Sector Union, Michael Tull, Justice James Edelman notes federal public servants are not entirely banned from “making political comment on social media” but the rules create an “ill-defined” boundary between acceptable and unacceptable expression of political opinion on their part.

Edelman notes that boundary is crossed by comments from APS employees that “sufficiently imperil the trust” between the APS and the parliament, cabinet or the general public. “An assessment of when that trust will be sufficiently imperilled will depend upon all the circumstances.”

“Departmental and APS guidelines cautioned against unofficial public comment and recorded a ‘rule of thumb’ that anyone posting material online should assume that their identity and employment would be revealed,” notes the judgement summary.

“While an employee in the Department of Immigration and Citizenship, the respondent used the Twitter handle ‘@LaLegale’ to broadcast more than 9,000 tweets, many of which were critical of that Department, its other employees, policies and administration, and Government and Opposition immigration policies and members of Parliament.”

The court considered whether three sections of the Commonwealth Public Service Act imposed an “unjustified burden on the implied freedom of political communication” and decided they did not.

These were the requirement that federal public servants “at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS” and the part of the values that demands an apolitical, impartial and professional public service. The court also upheld the right of an agency head to impose sanctions including termination for breaches of the APS code of conduct.

According to the judgement, these provisions are “consistent with the constitutionally prescribed system of representative and responsible government, namely the maintenance of an apolitical public service” and the limitations they impose on freedom of political communication are justified.

These rules are “reasonably appropriate and adapted or proportionate to their purpose” in the court’s view.

Cheers and jeers

Today’s decision was cheered by Sandi Logan, Banerji’s superior at the time of her sacking and the department’s national communications manager from 2005 to 2013. Logan sparred with @LaLegale on Twitter from his own account before working out Banerji owned the outspoken profile.

“I’ll have a drink to that decision,” he told The Mandarin shortly after the news broke.

“I think it’s the right decision. I do strongly believe in freedom of speech, but I also, in the same breath, recognise that public servants have an obligation to serve the government of the day without prejudice.”

The CPSU, on the other hand, is disappointed with the ruling.

“The CPSU has always defended the rights of public servants to participate in our democracy like everyone else can,” said national secretary Nadine Flood. “People working in Commonwealth agencies should be allowed normal rights as citizens rather than face Orwellian censorship because of where they work.”

The union believes a 2017 update to the APS commission’s social media guidelines — a document that tries to explain how the act, the code of conduct and the values might be interpreted in practical situations — demonstrates a “more draconian” approach in recent years.

The commission’s guidance is more like a series of practical tips on how to avoid getting in trouble, rather than a guide on how public servants can exercise their political rights to the maximum extent possible. In Michael Tull’s view, it “overstates the restrictions” imposed by the act, and he encourages politically active public servants to get other advice.

“This is a disappointing decision, but at the end of the day the government has a responsibility to protect freedom of speech,” said Flood.

“The Morrison government needs to demonstrate that it prioritises democratic rights, with a social media policy that reflects the real world.”

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