Since 2013, Michaela Banerji has been fighting her former employer, The Australian Federal Government, in an attempt to defend her freedom of political communication – a freedom that is implied in the Australian Constitution.
This week, she lost her case in the highest court in the land, the High Court of Australia, in a landmark decision that could have broad implications for public sector employees.
The story so far
During her time as an employee of the Department of Immigration and Border Protection (now known as the Department of Home Affairs), Ms Banerji operated the Twitter profile ‘LaLegale’, which frequently posted opinions critical of the Australian Government, its immigration policies, and its treatment of immigration detainees.
After an internal investigation linked her to the Twitter account, she was dismissed in 2013 for breaching the Australian Public Service (APS) Code of Conduct.
Soon after, Ms Banerji took her case to the Administrative Appeals Tribunal, which found that her termination had impeded her implied right to freedom of political communication.
Ms Banerji’s claim for her unlawful dismissal ultimately ended up in the High Court.
High Court judgment
The Court was asked to decide whether Ms Banerji’s termination was unlawful on the basis that it breached the Constitution’s implied right of freedom of political communication.
In a unanimous decision on 7 August 2019, the High Court Justices ruled that the dismissal was lawful because the APS code was proportionate to its purpose of maintaining an apolitical public service.
APS guidelines include stipulations that “an APS employee must take reasonable steps to avoid any conflict of interest (real or apparent) in connection with the employee’s APS employment” and must “uphold the integrity and good reputation of the employee’s agency and the APS”.
Ms Banerji submitted that her termination was unreasonable because, while the LaLegale account was clearly critical of the Government, it did not disclose that it was operated or endorsed by a member of the public service — and therefore could not bring the APS into disrepute.
But the court explained that the APS guidelines explicitly warn staff that they are not protected by anonymity when posting online, saying “There is no reason to suppose that “anonymous” communications cannot fail to uphold the integrity and good reputation of the APS.”
The Court also noted the guidelines make clear that, “as a rule of thumb, anyone who posts material online, particularly on social media websites, should assume that, at some point, his or her identity and the nature of his or her employment will be revealed”.
Implications of the decision
The judgment sets a precedent to the effect that the right of public sector employees to freely communicate on political matter is constrained by rules set down by their employer, including any codes of conduct.
It could affect 2 million workers in local, state and federal agencies and departments, and lays the foundation for governments to broaden their codes and policies to effectively silence dissent.
In fact in 2017, the APS released an updated version of the policy which made clear that just liking or sharing social media posts could amount to a breach of the rules.
The decision has renewed calls for Australia to have a national human rights charter so that we can all have fundamental protections such as freedom of speech.