When the Administrative Appeals Tribunal agreed it was unfair for Immigration to sack a public servant for anonymous tweeting, federal mandarins took notice. In a rare test case, the Attorney-General has asked the High Court to explore the legitimacy of limits on free speech for public servants.
Cases concerning workers’ compensation claims rarely generate constitutional questions. Nor do their decisions give rise to significant implications for democratic rights and processes. However, the April decision of the AAT in the matter of Banerji and Comcare (Compensation)  AATA 892 (16 April 2018) does just that.
Deputy President Humphries held that Michaela Banerji was entitled to workers’ compensation for injuries suffered as a result of the unreasonable management action of the (then) Department of Immigration and Citizenship that ‘unacceptably trespassed on the implied freedom of political communication’.
Needless to say, the implications of this decision, if correct, are potentially extraordinary – raising questions about the scope and strength of freedom of speech in Australia. Unsurprisingly, the Commonwealth filed an appeal of the decision, which appears set to be heard in the High Court after the intervention of the Commonwealth Attorney-General in the proceedings.
In 2012, Michaela Banerji was dismissed from her employment with the department after making anonymous Twitter posts under the name “LaLegale”. Many of Banerji’s posts were highly critical of the Government’s refugee policies. In one tweet, Banerji said that “When a nation state permits eighty-six percent of detainees to suffer mental health problems, it #fails. Understanding #itsnotwelfare”. The department even responded through its own Twitter account to a number “LaLegale’s” tweets.
Banerji never disclosed any confidential information she had obtained as an employee of the department through her tweets. For the most part, Banerji even sent all the tweets outside work hours and in her own time, and away from any government premises.
After receiving a tip-off from a fellow employee, the department commenced an investigation into Banerji’s online activities. This investigation concluded unequivocally that Banerji breached the Australian Public Service Code of Conduct for, amongst other things, failing to at all times uphold the ‘the good reputation … of the APS’. The department, following a well-publicised court battle, then terminated Banerji’s employment.
However, Banerji recently landed a major win from the AAT. The Tribunal found that, is simple terms, the department breached did not act reasonably when it terminated Banerji’s employment because it infringed the implied constitutional freedom of political communication. Therefore, Banerji was entitled to workers’ compensation for the psychological injuries she received as a result of losing her job.
More importantly, the decision of the AAT suggests that a significant section of the APS Code of Conduct could actually be unconstitutional due to it infringing the implied freedom of political communication. This not only has significant implications for APS employees who are subject to Code of Conduct investigations, but would also go a long way to clarifying the scope and strength of freedom of speech in Australia.
So why is this significant?
Banerji’s tweets were anonymous, political in nature and did not disclose anything that was not already publically known. The fact that her employment with the Commonwealth was terminated because she failed to uphold the ‘good reputation … of the APS’ leads unavoidably to the conclusion that she would not have lost her job if she supported the Government’s refugee policies.
This is chilling.
Though on one level, it is hardly surprising that an employer would not be impressed if one of its employees publically (if anonymously) criticises its actions. Perhaps it would even be warranted to terminate that worker’s employment.
But the Commonwealth is not just any ordinary employer. It is the government of a western liberal democracy. Public criticism of the Commonwealth’s policies and actions is nothing short of necessary for the proper functioning of our democratic accountability mechanisms. That is the very reason why Australians enjoy an implied freedom of political communication.
Furthermore, public servants are not only one of the largest groups of employees in Australia, they are also some of the most politically engaged. The decision to terminate Banerji’s employment for being critical of the government’s policies could easily have a chilling impact on public servant’s participation in political discourse in Australia.
This is not a case of a known APS employee criticising specific policies of the department they work for – understandably that could undermine the public’s perception of impartiality of the public service. Any argument that the public’s perception of the impartiality of the APS was damaged by Banerji’s tweets falls away when there was no way for the public to have identified her as an APS employee.
What will happen next?
With Comcare having already filed an appeal of the AAT decision and with the Commonwealth Attorney-General intervening in those proceedings and making an application to send the case straight to the High Court, it is clear that this case is not over yet. Their decision will have extremely significant ramifications for the administration of Australian democracy. But until that the High Court hands down a decision, the only thing which is absolutely certain is that public servants should think twice before commenting on government policies, even if they do so anonymously.
John Wilson is the Managing Legal Director at BAL Lawyers and is an accredited specialist in Industrial Relations and Employment Law. He thanks his colleague Robert Allen for his assistance in preparing this article. [email protected]