Should public servants be political mutes?

LET’S hope the Case of the Twittering Immigration Employee (Michaela Banerji) has not ended with her dismissal. The rights of all public servants are at stake here.

Banerji was dismissed by the Department of Immigration on the grounds that her anonymous Twitter account tweets breached the Australian Public Service Code of Conduct.

Banjeri unsuccessfully sought orders in the Federal Court last month to prevent the department from sacking her, arguing – as a self-represented litigant — that the code was contrary to her constitutional right to freedom of political expression.

The matter needs to be properly argued. The limits of public servants’ freedom of speech are important.

The case was muddied by extraneous allegations of bullying and other employment-related matters.

The critical point is to what extent should our public servants be excluded from the political discourse in our representative democracy.

Banjeri’s submission that the Constitution provides a personal right to freedom of speech was rejected because the cases simply do not support that proposition. The High Court has made it plain that the Australian Constitution does not provide a right to free speech along the lines of the First Amendment to the US Constitution.

Rather the court has struck down statute law and changed the common law in cases where they are incompatible with the functioning of the representative democracy provided in the Constitution.

The argument runs as follows: The Constitution sets up a system of representative democracy. That implies not mere voting, but informed voting. Informed voting requires a free flow of information on political matters.

So to the extent that any law is inconsistent with the intended operation of the constitutional system of government it will be read down or held invalid.

Outside the admittedly broad political sphere the Constitution does not guarantee any freedom of speech.

In any event, freedom of speech in any liberal democracy, even in those countries were it is constitutionally guaranteed such as the US and Germany is not unlimited.

In the US it has long been held that employment contracts in the private sphere can make public criticism of the employer a sackable offence.

The critical question is what happens when the employer is the government – does a government employee cease to be a citizen and become only an employee.

Moreover, what if the employer is a private company engaged in government work, such as the large-scale contractors who run the immigration gulag?

In the US, until the 1960s, government employees were generally treated like any others – criticise your employer and you are out.

But since then, the First Amendment has been invoked to give some protection to government employees.

The most recent cases say that the government can restrict the speech of employees when they are speaking as part of their job. Well, obviously. But off-duty, government employees are still citizens and can speak on matters of public concern subject only to restrictions that are necessary for the government “to operate efficiently and effectively”.

That seems like a pretty good test to me – balancing the rights of public servants against the public interest in the efficient and effective operation of government.

It is unlikely, however, to be adopted by Australian courts in interpreting our Constitution. Even so, there is still a grey area as to what if any free speech a public servant has in Australia or the extent to which the government can muzzle its employees.

The Public Service Act formally adopts into law the Australian Public Service Values and the APS Employment principles and says that public servants “must AT ALL TIMES behave in a way that upholds the integrity and good reputation of the employee’s agency and the APS”.

So being off duty is no protection.

Is such a sweeping restriction inconsistent with the operation of the constitutional system of government?

Perhaps it is in a couple of ways. What if an agency is acting so badly that it has no good reputation to uphold, or that it does not deserve a good reputation? What if the only way for such an agency to get back its integrity is for its malfeasance to be exposed?

Overall, the provision (coupled with similar state and territory provisions) precludes a third of the workforce engaging in political discussion.

One could understand a provision directed at public servants commenting on their own agency, but to the whole Australian Public Service is surely a different matter.

Have such a large portion of the population excised from political discourse might well be incompatible with the free flow of information implied in the Constitution.

The restrictions obviously would prohibit public servants from standing for Parliament, especially for Opposition parties because these candidates must criticise government action. But they are prohibited from standing anyway because the Constitution precludes someone holding an office of profit under the Crown from being elected. Public servants have to resign if they want to stand for election but they have a right to be reinstated after the election if unsuccessful.

In Banerji’s case, the tweets were anonymous. In the US she would have been protected because a few anonymous tweets are hardly likely to affect the effective and efficient operation of the government.

I sense an over-reaction by a secretive and over-sensitive department. It seems like another case of the world trying to catch up with the explosion of social media in which everyone can publish their own newspaper.

How far will this “must at all times” provision stretch? What about an email from a personal email account to two, 10, 100, 1000 or 10,000 recipients?

In Banerji’s case the judge gave fairly perfunctory attention to the constitutional issues and refused to grant relief on other grounds. It would be good to see the issue get a thorough airing.


Aside from the freedom-of-speech matter, the judge in the case, Justice Warwick Neville, pasted the Department of Immigration for hiding behind privacy provisions and engaging in “Yes Minister speak”.

Banerji had accused a departmental superior of bullying and harassing her. The department investigated and reported its results to her as follows: “The allegation in this instance was investigated and appropriate action taken by the department. The matter has now been finalised. The Privacy Act 1988 prohibits further disclosure of information relating to this investigation. Accordingly, I am unable to disclose further details regarding the outcome. Thank you for your assistance with this matter. If you have any questions, please do not hesitate to contact me.”

The judge wryly asked how a complainant “might obtain any relevant information, or ask any questions, about a grievance that involves ‘serious misconduct’ in circumstances where that person is advised that no relevant information can be provided.

The department also cited the Privacy Act in refusing to give The Canberra Times information about the case and routinely cites it when refusing to give information about refugees – who no doubt would dearly love their plight to be shouted from the rooftops.

One might suspect that the Privacy Act is being used more to protect the department’s secrets than any concerns for individuals’ rights.
This article first appeared in The Canberra Times on 5 October 2013.

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