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The tweet smell of APS authoritarianism



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.

Screenshot of @LaLegale on TwitterThe 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.'



Binoy KampmarkDr Binoy Kampmark is a former Commonwealth Scholar who lectures at RMIT University, Melbourne.

Topic tags: Binoy Kampmark, social media, public servants



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Existing comments

It's a great pity Sir Humphrey of "Yes, Minister" fame was a fictional character. Or was he? He was a most subversive character one step ahead of his government overlord (it helped that said overlord was a bit dippy). It is no laughing matter for a contrarian public servant who does not want to live in a box. A Bill of Rights would be helpful for such cases. However, government overlords like their power to be very, very, very potent. It is only the judiciary that stands between the two sides: not necessarily a contrarian judiciary but judges who value people as well as precepts would be good.

Pam | 12 August 2019  

Many public servants, including schoolteachers, will recall the requirement that any letter from them to their State or Federal Administrations or Ministries end with "Your humble and obedient servant, (+ name)". Today's Australia is a scab's & sycophant's paradise.

James Marchment | 13 August 2019  

This decision casts a chill over the freedom of expression of Australian citizens as Public Servants. A story from my past to illustrate this point. In 1975 I was employed as a New South Wales Public Servant. Following the Dismissal of the Whitlam Government, many of us young public servants were outraged by John Kerr's action and decided to join the demonstrations in the adjacent Hyde Park, even my Supervisor joined us. Very quickly an edict came down from the Secretary of the Department. We were NOT under pain of disciplinary action, to participate or even attend the demonstrations during our lunch hour. What did we do? We defied the instruction. Our reasoning being; 1. We had the democratic right to exercise our disagreement with the actions of Kerr and Frazer, whose Government we saw as illegal. 2. The Department Head could hardly sack all of us! Finally James, I am old enough to remember dictating that conclusion in my official correspondence, to my stenographer! I hope and pray that this draconian ruling will be overturned by a more democratic government.

Gavin A. O'Brien | 13 August 2019  

In my view this is not only a serious watermark in the context of democratic freedoms, given that it has come via the High Court, but it is not unexpected, given the continually progression of erosion of the "Separation of Powers" of the Westminster system and the Constitution. Not only has there been now some decades of political appointment to heads of both Commonwealth and State Departments and agencies, but the ethic within the public services is that their prime responsibility is to protect the Minister, not merely from error but from personal or political embarrassment. The Minister is all too often the de facto CEO of the Department these days. Small wonder that this contributes to the pervasive distrust of politicians, and the lowering of the prestige of the public service. It does not bode well for the welfare of the body politic.

Dennis | 14 August 2019  

There is a difference between pontificating and whistleblowing. Public servants shouldn’t pontificate about matters in their own bailiwick because that is only pitting one opinion against others of equal validity in the same administrative area of responsibility with no definite proof that the pontificator is correct. Whistleblowing is the disclosure of malpractice in which the whistleblower explicitly offers proof that s/he is correct. LaLegale should be utterly free to pontificate on federal policy concerning, say, the Murray-Darling Basin because there is no claim of, or risk of suggesting, special competence, given that the Murray-Darling Basin has nothing to do with Immigration. If she had wanted to say something about her department, she should have whistleblown some malpractice to do with the Immigration portfolio.

roy chen yee | 24 August 2019  

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