High Court Mintabie book-up
(Image: AAP/Lukas Coch)

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.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey