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The tweet smell of APS authoritarianism

  • 12 August 2019


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