The High Court’s judgment in the case brought by former public servant Michaela Banerji comes at a very interesting moment. Thanks to the recent rash of Folau family sackings, everyone is talking about the contest between personal freedom and the employment contract. But how comparable are these cases? And what are the state of our freedoms when you can get sacked for being mean to the government on Twitter?
Let’s go back to the beginning.
Banerji was a senior-ish employee in the Department of Immigration and Citizenship when, in 2012, she started tweeting anonymously under the handle @LaLegale. Nine thousand tweets later, her employment was terminated for breaches of the Australian Public Service Code of Conduct.
Banerji hadn’t held back in her criticisms of the government and its policies. According to the Administrative Appeals Tribunal, her tweets were “reasonably characterised as intemperate, even vituperative, in mounting personal attacks on government and opposition figures”.
The APS Code of Conduct is part of the employment contract for all Commonwealth public servants. It requires them to “at all times behave in a way that upholds the APS values and the integrity and good reputation of the APS.” The values dictate that the APS is apolitical, impartial, professional and impartial.
Banerji had been outed as LaLegale by a colleague. Her sacking was justified on the basis that her tweeting took her over the apolitical line and into territory that made her continued employment untenable.
She raised her legal challenge in a relatively obscure way: suing for compensation for a workplace injury — a psychological disorder caused by her termination. That claim was excluded by the law because her injury arose from a reasonable administrative action by her employer (the sacking). The case before the High Court was about whether that exclusion was unconstitutional and therefore invalid because it infringed on the implied freedom of political communication protected by the Constitution.
Cool argument, but it didn’t fly. Banerji went down 7-0.
Look, said the court, can we just remind everyone for the billionth time that IN AUSTRALIA WE DO NOT HAVE A RIGHT TO FREE SPEECH. We have this weird implied freedom, which we found years ago between the lines of the Constitution, preserving citizens’ ability to talk to each other about government and politics without unreasonable restriction from laws that shut down the chat.
In reality, as the cases have rolled on, the High Court has pared that protection back to a pretty narrow frame. As the court said, the freedom “extends only so far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution”.
In that context, Banerji’s case was short work for the court.
“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 [etc etc]”, it said. The APS must be able to faithfully implement government policy, regardless of the personal opinions of individual servants and independent of political affiliations. In pursuit of that, the court concluded, the APS values make perfect sense.
Banerji’s side argued it made a difference that she tweeted anonymously; surely, even if the APS has the legal right to prevent public servants from going public with their personal views, it can’t be able to restrict their ability to go rogue under a pseudonym?
The court said no, there’s no relevant distinction at all. Apart from the fact that Banerji’s own anonymity hadn’t been preserved in reality, why should anonymous communication get a constitutional protection not afforded to what people say under their own names? Actually I do think that’s a pretty good point.
The High Court’s decision isn’t wrong, in terms of the law as it’s been unsatisfactorily developed. Our bullshit implied freedom is a leaky band-aid over the hole where our actual human rights should be. There’s no point blaming the judges for not doing the job that our constitution didn’t and our politicians won’t.
The law, as confirmed, allows the government to very severely constrain the freedom of its employees to speak as they wish — even on social media, even anonymously.
The relevance of this to Folau’s case is only indirect, in that it underlines the primacy that our legal system gives to the employment contract over any real or imagined human rights. Is this bad? More pointedly, can I be pro-Banerji but anti-Folau, without hypocrisy?
Well, yes.
Personally I do think that there was merit in the High Court’s original invention of the implied freedom, because democracy does, as they say, die in darkness. It would be even better if we had a properly articulated right — not just a residual freedom — to communicate freely on matters of government and politics.
That’s a different thing from the notion being wielded by Folau’s supporters: that free speech must trump everything including private contracts between commercial entities and free agents.
Short version: the High Court got the law right, and the law is wrong.
As an aside, can anyone explain to me the argument against a Bill of Rights, as presented by people such as John Howard, who has always seemed to be adamantly against the idea? Our esteemed leaders usually can’t bend over quick enough when in the presence of their Yankee owners and idols and yet in this particular area, they reject an idea that US conservatives see as sacrosanct. I don’t understand why.
Watch The People vs Larry Flint and you will see why they are afraid of a constitutional right to free speech.
Both Banerji and Folau cases raise a bigger question – why should an employer be able to control, via employment contracts, the otherwise lawful activities of their employees conducted outside of their employment? (Okay, setting aside the fact that Banerji sent some tweets inside working hours.)
What business is it of my employer whether I spend my evenings either playing the pokies or writing anti-pokies letters to Woolworths (assuming that I don’t work for Woolworths).
If I am a public servant, can I not hand out how-to-vote cards on election day?
What is the material difference between me expressing my opinion on treatment of genuine refugees in Nauru over dinner with friends, or in a closed chat with friends on the internet, or in a public tweet? If it doesn’t affect that performance of my duties as an employee, there should be no difference. Does that mean that I could be sacked as an employee for private comments to friends over dinner? On the current state of the law, the answer is “Yes”.
This is about the overreach of employer power, intruding into the private lives of workers. It’s not right, and it’s not fair.
I wondered the same. What if I, were I still a Canberra bureaucrat, were expressing opinions derogatory of govt policy at a restaurant and a person at the adjacent table was catching it all on their mobile phone?
Quite simply, you’d be at risk of being sacked lawfully, as matters currently stand.
Much would depend on whether you were in a restaurant in Canberra or Queanbeyan. NSW law has a bit to say about recording conversations without the consent of all parties to the conversation.
To put it in teknikal terms, you is gefukked.
Does this mean that public servants can’t be active members of political parties as a member of a party is automatically against the party in power. This will hurt the ALP as the Coalition Government supporters usually work in business . The public servant in the ACT usually returns a Labor Government so anyone who comes out a publicly supports Labor the Preacher will strike you for having a go so you will have to go
Does a banned political comment by a public servant include those that praise the government in power at that particular time.????
Yes, but it won’t get you sacked.
I was in the Victorian Ministry for Planning when Evan Walker was minister. I was a long-term member of the Liberal Party in a foot-soldier capacity. I wanted to promote a cybernetic (control systems) approach to legislation and wished to approach Kennett through the Liberal Party. I sent a message to Walker outlining what I wanted to do and making the points it was not party political and it was not directly concerned with the activities of the planning department. Walker gave me the ok on that basis. My membership in the Liberal Party never affected my commitment to the department or its ministers. My duty was to the Crown and the system which included the minister, whoever that was.
I think the test should be one of reasonableness. Would you and your employer feel comfortable working together given what you may say in public? I heard when Sir Robert Menzies took power, he intended to implement a capitalist economy using a public service that contained a lot of socialists. He spoke to the public servants and acknowledged their right to be socialists but asked them to set aside any personal feelings on the matter and genuinely implement the government policy. This they did.
And I should add that if a public servants feels very strongly that what they are doing in the department is wrong, they should try and move to another area of government activity where there is no personal conflict.
Thanks Michael. Spot on. Totally agree. The High Court got the law right (in fact it cannot actually get the law wrong because even if it did, it is the end of the road and that what the HC says is the law is the law). Very clearly, the law is seriously deficient. But on the facts of Banerji’s case, even if we had an express freedom speech on political matters, and the APS code of conduct is a reasonable restriction in the context of a supposedly apolitical public service, my view is she would have gone down anyway. It seems the High Court only gave her leave to give to another chance to say that WE HAVE NO FREEDOM OF SPEACH IN AUSTRALIA.
I haven’t (and don’t intend to) read the judgment, but this in Bradley’s article stood out:
“The APS must be able to faithfully implement government policy, regardless of the personal opinions of individual servants and independent of political affiliations.”
Did the judgement make the case that a person making out-of-work-hours tweets critical of Government policy would not be able to dispassionately actually carry out their work implementing Government policy during work hours at the APS ?
After all, this is EXACTLY what those who sit in judgement of the rest of us in the courts are supposed to be able to do ? (i.e. dispassionately pass judgement on any case bought before them, irrespective of their personal views).
Superintendents of Contracts have an obligation to act in the best interest both of the Principal and the Contractor. Note the Superintendent is an employee of the Principal. This has been a legal requirement for so long in Contract Law, it speaks to a well established acceptance of a person’s ability to be impartial in their duty. I wonder why this is not used as a precedent in these cases.
Dear KK – a nice sentiment. But the role of a superintendent in construction contracts is prescribed by the contract. Certainly, during the ’80s & ’90s contracts assigned a quasi-judicial role to the superintendent in respect of determining the parties rights and obligations, particularly payment. But those were the good old days. Now, most commonly, contracts make the superintendent the unalloyed henchman of the principal (ie its agent) and even often seek to excuse the principal from liability for the conduct of the superintendent that the principal alone appoints. That is just one of many bastardisations of reasonable contract terms that are now the norm. And that exemplifies my case, as an experienced contract lawyer, that contract has become one of the most powerful instruments of oppression in modern society and one of which most people are blissfully unaware. And the courts rigidly apply the contract maxim that the law will as readily enforce a bad bargain as it will a good bargain.