Should a public service have people with political, disagreeable opinions? No, according to the guidelines of employment in the Australian Public Service. To breach this injunction may well lead to justifiable dismissal — even in the context of tweeting from an anonymous account on a digital platform.
The decision of the Australian High Court in the case of Comcare v Banerji is a salient warning to employees in the public service: preserve, without question, 'APS values and the integrity and good reputation of the APS'. Those troubling values outlined in the Public Service Act 1999 (Cth) centre on it being 'apolitical, performing ... functions in an impartial and professional manner'. Obedience, it would seem, must be unquestionable and total.
Michaela Banerji had been an employee of the Department of Immigration and Citizenship. Under the anonymous twitter handle @LaLegale, critical tweets on the department's policies, personnel and various members of parliament were posted. After an internal investigation, Banerji was deemed to have breached the code, after which her employment was terminated. She subsequently sought compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth), having suffered post-traumatic stress disorder.
Banerji faced a seemingly insuperable problem: 'injury' did not include harm arising from 'reasonable administrative action taken in a reasonable manner in respect of the employee's employment'. The Administrative Appeals Tribunal thought otherwise, finding that the code had 'impermissibly trespassed upon the respondent's freedom of political communication'.
The High Court unanimously disagreed with the finding. The provisions in question 'did not impose an unjustified burden on the implied freedom of political communication'; the termination of Banerji's contract had not been unlawful.
The decision reveals the anaemic nature of such an implied right, and whether it deserves to even be called one. The High Court reminded us that such a right was not 'a personal right like the freedom of expression guaranteed' by the Canadian Charter of Rights and Freedoms or the First Amendment of the US Constitution. It was, rather, 'a restriction on legislative power which arises as a necessary implication' on reading of various sections of the Australian Constitution 'and as such, extends only so far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution'.
Revealing a rather unimaginative view of employment history, the Court also found reason to assume, in Justice Edelman's words, that the code did not turn 'public servants into lonely ghosts', though did, 'properly interpreted', still cast 'a powerful chill over political communication.'
"The irksome message here is that we do not want dissenting public servants with a conscience and a contrarian sense, but obedient staffers performing their tasks with robotic obedience."
This was found to be perfectly acceptable for the public service, with the law being 'necessary and adequately balanced' in conserving political neutrality and trust. That great fiction of the legal world was duly evoked: the reasonable decision maker, wise and balanced. Provided that the sanction was been imposed reasonably and proportionately, claimed Chief Justice Kiefel and Justices Bell, Keane and Nettle, 'there can be no risk of infringement of the implied freedom'.
In terms of the use of technology, the court saw 'no reason to suppose that "anonymous" communications cannot fail to uphold the integrity and good reputation of the APS'. The APS guidelines suggested that a person posting material online 'should assume that, at some point, his or her employment will be revealed'. Justice Gordon even considered the code to be 'tailored and limited' and 'did not directly target political communication'. (Does it even have to?)
In a very visible sense, the entire scope of employment has become one of needless oppression and compliance on the part of employers to management. Function displaces thought; product and efficiency targets are placed above critique and questioning. Banerji's boss, Sandi Logan, exemplified this point in claiming that the tweets of @LaLegale were placing the department 'at considerable reputational risk'. Never mind the actual policies that might have done the same.
Work has expanded not merely to fill the space of its completion, but to exert control over private life. Even in spheres of employment where freedom of expression should be presumed — the academy, for instance — management remains bullyingly vigilant in placing brand label above dissent. Cases such as that of Peter Ridd from James Cook University, or Roz Ward from La Trobe University demonstrate all too crudely that a university bureaucracy will, when threatened by political activism, respond with disciplinary action. Posting on digital platforms, even in a private capacity, may well lead to suspension or termination of employment.
The reasoning of the High Court has done much to affirm the weakness of a right that has no actual written form in the Constitution. Having been implied, it is contingent, modest and ineffectual, a restraint rather than a possession. The right to speech is rendered subordinate to the broader dictates of a service and proportionality. The law of contract takes precedence over the basic liberties of holding and expressing political opinions.
The irksome message here is that we do not want dissenting (Home Affairs minister Peter Dutton prefers the words 'sneaky and cute') public servants with a conscience and a contrarian sense, but obedient staffers performing their tasks with robotic obedience. As a tearful Banerji assessed correctly, 'It's not just a loss for me, it's a loss for all of us, and I'm very, very, very sorry.'
Dr Binoy Kampmark is a former Commonwealth Scholar who lectures at RMIT University, Melbourne.