A former federal public servant who tweeted anonymous comments critical of the Immigration Department could not rely on the implied freedom of political communication to challenge her dismissal, the High Court has ruled in a landmark free speech case.
Michaela Banerji, a former public affairs officer in the Department of Immigration and Citizenship, was sacked in 2013 for using the Twitter handle "@LaLegale" to post thousands of anonymous comments critical of the then-Labor government and departmental policy.
Michaela Banerji at the High Court for the decision on public servant free speech.Credit: Karleen Minney
Her conduct was said to fall foul of the Public Service Act and the Australian Public Service (APS) code of conduct, which required employees to behave in a way that upheld the values of the Australian Public Service including that it is "apolitical" and acts in an "impartial and professional manner".
Ms Banerji won a workers' compensation claim in the Administrative Appeals Tribunal (AAT) last year, after the tribunal found her sacking was unlawful because it "unacceptably trespassed on the implied freedom of political communication" in the Commonwealth Constitution.
"A comment made anonymously cannot rationally be used to draw conclusions about the professionalism or impartiality of the public service," AAT deputy president Gary Humphries and member Bernard Hughson said.
The federal government appealed against the decision and on Wednesday the High Court ruled unanimously in its favour. In a decision with major implications for the country's 2 million public servants, the court found Ms Banerji's dismissal was lawful and "did not impose an unjustified burden on the implied freedom of political communication".
The decision does not apply to private sector employment battles such as the fight between Rugby Australia and former rugby star Israel Folau, who is in hot water over his comments on social media about homosexual people and others, because the implied freedom acts as a check on Parliament rather than applying more generally. A public servant making the same comments as Folau might also find it difficult to argue they were commenting on government and political matters.
Ms Banerji was challenging specific provisions of the Commonwealth Public Service Act which were said to be inconsistent with the implied freedom.
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Her barrister, Allan Anforth, said the ruling would affect "any person that is employed under a Commonwealth statute of any description" including ABC employees.
He said it was a "very disappointing decision" that relied on an "outdated concept of employment".
"Why should public servants be carved out as people who should not be able to participate in the political process?" he said.
In a joint judgment, Chief Justice Susan Kiefel and Justices Virginia Bell, Patrick Keane and Geoffrey Nettle made clear the implied freedom of political communication was not "a personal right ... like the freedom of speech guaranteed by the First Amendment" to the US Constitution.
Australia does not have a Bill of Rights enshrining such a freedom. "As has been emphasised by this court repeatedly ... the implied freedom of political communication is not a personal right of free speech," the joint judgment said.
The question for the court was whether the Public Sector Act imposed an unjustified burden on "political communication as a whole".
The court ruled unanimously it did not and the restrictions were "consistent with the system of representative and responsible government mandated by the Constitution" and "reasonably appropriate and adapted" to that end. The ruling does not mean any restriction on the implied freedom would be valid.
In a separate judgment, Justice James Edelman said that despite the "deep and broad constraints on freedom of political communication imposed by [the Public Service Act] ... the law is reasonably necessary and adequately balanced".
Justice Stephen Gageler said the burden on the implied freedom was justified and required "a person who is an APS employee to exercise restraint and moderation in the expression of political opinion for so long as he or she chooses to remain an APS employee".
Nadine Flood, secretary of the Community and Public Sector Union, said the ruling had "serious implications for freedom of speech" and "people working in Commonwealth agencies should be allowed normal rights as citizens rather than facing Orwellian censorship because of where they work".
Ms Flood said an even more "draconian" social media policy was released in 2017 and prohibited public servants "liking" or sharing critical posts.
"The notion that the mum of a gay son who happens to work in Centrelink can't like a Facebook post on marriage equality without endangering her job is patently absurd," she said.
The notion that the mum of a gay son who happens to work in Centrelink can't like a Facebook post on marriage equality without endangering her job is patently absurd.
Nadine Flood, CPSU
Chief Justice Kiefel and Justices Bell, Keane and Nettle said Ms Banerji had sought to argue that the relevant provisions in the Public Service Act requiring employees to uphold APS values such as impartiality did not apply to anonymous comments on Twitter.
But they agreed with APS guidelines that "as a rule of thumb, anyone who posts material online, particularly on social media websites, should assume that, at some point, his or her identity and the nature of his or her employment will be revealed".
"Where the employee broadcasts tweets commenting on policies and programmes of the employee's department or which are critical of the department's administration, damage to the good reputation of the APS is apt to occur even if the author's identity and employment are never discovered," the joint judgment said.
"In light of these considerations, it would be facile to suppose a parliamentary intention to exclude communications of the kind broadcast by the respondent [from the reach of the Public Service Act]."
Ms Banerji was ordered to pay the government's costs. Her barrister, Mr Anforth, said the 74-year-old was in ill health and had "no capacity whatsoever" to meet the costs.