Public servants free to criticise government online, tribunal rules

A TRIBUNAL has ruled that government staffers are legally entitled to criticise their employer online — but there’s a catch.

OUR public servants have been unleashed to criticise the government’s and policies on social media.

But they will have to make sure they do it in their own time, don’t use office equipment, and adopt a fake name.

That’s the clear interpretation of a ruling by the Administrative Appeals Tribunal this week, which established a “freedom of political communication” for public servants.

It is being seen as a victory for free speech in the digital age, and a potential Twitter problem for department chiefs.
No longer will it be seen as a breach of the Australian Public Service Code of Conduct if bureaucrats tweet criticism of their department superiors, minister or policies, even if they might breach department “values”.

As long as they use a pseudonym.

At the centre of the case was Michaela Banerji, who from about January to July 2012 tweeted as @LaLegale and was critical of the Department of Immigration where she worked.

“It appears that some of her followers were journalists and politicians,” the tribunal recorded in its findings released Tuesday.

“The tweets frequently imparted strong criticism of the then government, the then immigration minister, members of the Commonwealth Parliament, government immigration policy and the department’s communications manager.”

Ms Banerji didn’t hold back.

“Think of the deaths we are responsible for in Iraq! Think of the refugees we have created by our invasion of Iraq!” she wrote in one.

Even prime ministers were not spared: “There’s something in common about the way @JuliaGillard uses words and the way that Craig Thomson uses credit cards.”

All were sent in her own time on her own devices, apart from at least one retweet sent in work hours.

“Prior to 7 March 2012, Ms Banerji tweeted using the twitter handle @LaLegale,” the tribunal said.

“The identity of @LaLegale was not at that time publicly known.

“@LaLegale commented on matters relevant to the Department of Immigration and Citizenship portfolio [now known as the Department of Home Affairs] but did not disclose confidential information obtained in the course of her employment.”

But a complaint from within the department claimed she was breaching the Code of Conduct.

After a succession of reviews she was sacked in September 2013.

The tribunal said it was not ruling on whether the Code of Conduct was restrictive, but whether it had been misused.

“The tribunal’s task is to determine whether the termination of Ms Banerji’s employment constituted reasonable administrative action,” it said in the conclusion.

“Since the tribunal finds that the act of termination unacceptably trespassed on the implied freedom of political communication, it follows that the act of termination was unlawful, and ipso facto cannot be reasonable administrative action.”

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Originally published as Public servants free to criticise government online, tribunal rules