High Court ruling restricts free speech for government employees in Australia

It has long been possible for people to give up their right to free speech for some purpose -- in this case to get a government job.  And in this case that was part of the employment contract that people sign to get a federal government job in Australia.  And Ms Banerji knew that, which is why she posted anonymously.

But there is no "out" for anonymous posting.  Ms Banerrji used knowledge she gained as part of her employment to criticize the government.  And that was a clear breach of her contract -- one which exposed the government to criticism.  The damage was done even though it was done sneakily.

One could argue that the government should be more open to criticism but we will undoubtedly wait a long time for that to happen.  Governments of both Left and Right like their secrecy. Confidentiality clauses are common in contracts for employment by private firms so the government is not doing anything unusual by insisting on confidentiality and penalizing breaches of it

This has no implications for free speech in general in Australia.  And even public servants have free speech as long as they keep their mouths shut about their job or matters to do with their job

The High Court has ruled that a public servant should have been sacked after making comments that were critical of the federal government on an anonymous social media account outside work hours.

Michaela Banerji was sacked from her job at the Department of Immigration and Border Protection in 2013 when it was found she had been operating a Twitter account called @LaLegale that posted opinions criticising the government's immigration policies and treatment of asylum seekers.

Unofficial public comment tests limits of free speech
Even though Ms Banerji posted her opinions under a pseudonym and did so outside of work hours on her personal phone, the department said she had breached Australian Public Service Code of Conduct terms which aim to maintain an apolitical public service.

The public service argued she had breached guidelines on the use of social media and making public comments, even in an unofficial capacity.

Freedom of political communication and the right to free speech
Ms Banerji applied to Comcare for compensation for PTSD. The Administrative Appeals Tribunal found her sacking had impeded her implied right to freedom of political communication, contained in the Constitution, and ruled in her favour.

Comcare appealed to the High Court which ruled against Ms Banerji, saying the implied freedom of political communication is not a personal right of free speech and her dismissal was reasonable. (See Comcare v Banerji [2019] HCA 23, 7 August 2019.)

The High Court found that Ms Banerji had breached the Australian Public Service Code of Conduct, which was a condition of her employment, in that she had failed to uphold public service "values" and its "good reputation". The judges stated that a representative and responsible government must have an apolitical and professional public service.

The High Court decision is likely to have consequences beyond the Commonwealth public service.

With two million people employed in federal, state and local governments, the ruling will certainly impact their private out-of-work expression of political or social opinion.

It also throws into doubt the rights of everyone who is on a government payroll. Can teachers speak out about education policy? Can hospital workers complain of work conditions? Can scientists report flaws in climate change policy?

The implication of this ruling is that any employee who is critical of their employer's position on some political or social issue could risk being sacked. This is especially the case if a business has a policy against employees making comments regarding their workplace on social media.

The judgement may even have a bearing on cases like that of Israel Folau, who was sacked by the Australian Rugby Union for making homophobic comments on social media that breached his contract.

Following this ruling, does Australia have free speech?
After the Banerji sacking, the government tightened employment guidelines even further, stating that even liking or sharing a social media post could breach the rules.


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