The Administrative Appeals Tribunal has decided that public servants should be free to criticise government policy under fake names on social media, on the basis that such comments cannot possibly reflect badly on their employers.
The tribunal ruled that former public servant Michaela Banerji is entitled to workers’ compensation for psychological injury, caused by her dismissal from the former Department of Immigration and Citizenship in 2013, which led to a long-running legal saga that has been widely reported.
Banerji told The Mandarin Comcare’s decision to reject her claim was overturned because the AAT decided the department’s original decision to sack her was unlawful, which meant her injury was not a result of reasonable administrative action.
“A comment made anonymously cannot rationally be used to draw conclusions about the professionalism or impartiality of the public service,” AAT deputy president Gary Humphries and tribunal member Bernard Hughson concluded in the decision, reported by BuzzFeed.
Banerji v Comcare 2014_5055 AAT “Since the Tribunal finds that the act of termination unacceptably trespassed on the implied freedom of political communication it follows that the act of termination was unlawful and ipso facto cannot be reasonable administrative action.” #auslaw
— LaLegale (@LaLegale) April 16, 2018
In 2014, Banerji — or @LaLegale on Twitter — rejected a settlement offer from Comcare that would have required her to stop communicating with the media, according to the ABC.
This week, the AAT found her sacking over pseudonymous tweets was unfair, as it infringed on the right to freedom of political communication that is implied in the Constitution. This contrasts with a 2013 decision by the Federal Court, which rejected Banerji’s application for an injunction to stop her termination.
At that time Federal Court judge Warren Neville commented that “the unbridled right [to free speech] championed by Ms Banerji” did not exist.
According to the reported AAT ruling, “almost all of the public policy considerations” that justify restrictions on what public servants or military officers can say publicly “cease to apply” when the person is anonymous.
Her case attracted the interest of various academics like Sarah Joseph, director of the Castan Centre for Human Rights Law at Monash University, who pointed out it was “somewhat muddied by other allegations, such as her claim of victimisation against the Department and its claim that she was engaged in outside employment without proper permission or authority”.
Banerji has tweeted that she expects the Australian Government Solicitor to appeal the decision. It appears she wants to have the AAT ruling backed up by the Federal Court so it more strongly binds APS agencies going forward, which has been the plan since since last year.
Having won in the AAT today, we will seek referral to Federal Court. If you would like to support this action you may make a donation to: “Michaela Banerji Legal Fund” BSB 641 800 Acc No. 200807232. #auspol #IFOPC #auslaw #auspol https://t.co/niU5IsZEZF
— LaLegale (@LaLegale) April 16, 2018
The case demonstrates that while the Australian Public Service Commission provides public servants detailed guidelines on social media use, this does not change the legally binding rules, as some reports have implied.
The commission’s latest effort warns that “many of us now have a digital footprint that makes it easy to find out who we are and, often, where we work” and suggests APS staff could still get in trouble for public comments made under a fake name if they are later unmasked by someone, or if a private email is forwarded to their superiors.
Departments spend considerable time and effort to uncover such internal critics, often after a tip-off (but obviously aren’t so concerned that effusive praise for the current government or its policies might also be seen as a lack of impartiality).
“It’s a simple fact: agencies often receive dob-ins about comments made by their employees,” the APSC cautions. “Often those employees are shocked to find they’ve been linked back to their employer so easily.”
BuzzFeed reports that to the AAT members, there is “a discomforting resemblance to George Orwell’s thoughtcrime” in the idea of policing what APS employees say in circumstances where they are not reasonably identifiable by members of the public.