Freedom of speech: The powerful chill of the Banerji High Court decision

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Former public servant Michaela Banerji has lost her free speech case over anonymous tweets (Screenshot via YouTube; Big Brother image via Wikipedia)

To regard public servants as apolitical is tantamount to seeing them as amoral, executing the policies of the day with blind obedience. Precedents of history demonstrate how dangerous that path can be, writes Dr Binoy Kampmark.

THE NASTINESS of Australian bureaucracy took a turn on Wednesday when the High Court of Australia found against a public servant seeking compensation for harm arising out of post-traumatic stress. 

Michaela Banerji’s claim – initially found to be appropriate by the Administrative Appeals Tribunal – arose out of her 2013 dismissal as an employee of the then Ministry of Immigration and Citizenship. 

To obtain compensation, Ms Banerji needed to show that her dismissal resulted in an injury that could result in a claim; to do so, she had to show that the action against her was not a reasonable administrative action taken in a reasonable manner. The AAT found in her favour, holding that her dismissal had been an infringement of the implied right to political communication.

Best known for her Twitter handle @Lalegale, Banerji posted some 9,000 tweets questioning policies, personnel and politicians connected with her department. Offshore detention featured as a prominent target.  She had, in other words, been political in an apolitical position — a rather dastardly thing to do from an obedient civil servant’s perspective.

The judgment makes agonising reading for anybody genuinely interested in free speech and political communication. The original tribunal view sensibly observed that the Immigration Department had gone too far in applying the restrictions of the Australian Public Service (APS) code of conduct. Imposing “restrictions in such circumstances bear a discomforting resemblance to George Orwell’s thoughtcrime”.

What the High Court decision confirms is that an absence of any enforceable bill or charter of rights protecting free speech renders any implied personal right to political communication as a nonsense. The judges were clear to point out that such a right was a restraint on state power, not a personal right held by Banerji; to have framed the issue otherwise, as the AAT did, confused the matter. Political communication had to be considered “as a whole” — a fairly unconvincing dilution of the issue.

When done so – and considering the need for an apolitical, professional public service – the actions and provisions authorising them, were not infringements of the implied right to political communication. Four of the judges also noted that anonymity on a digital platform did not protect Banerji. The person’s identity as a public servant might still be discovered on investigation — a fact that might damage the reputation of their department.

The draconian judgment did have a few sparks of awareness. Justice James Edelman was not oblivious to the nature of how public servants have been treated in Anglo-Australian history. While he claimed that the APS code “no longer turns public servants into lonely ghosts” it still cast “a powerful chill over political communication.”

The response to her High Court loss was celebrated, with a fair degree of predictability, by the authoritarians. Home Affairs Minister Peter Dutton was foremost among them. 

On Melbourne radio, Dutton voiced his satisfaction

“If people are employed, particularly in sensitive areas, and they think they can go off and be sneaky and cute leaking information or publishing information, or tweeting, whatever it might be, it’s unacceptable, and we’ve been very clear about it.”

Dutton cannot be expected to be anything other than what he is: a policeman with a policeman’s view of the world, garrisoned and fortressed. Loyalty and fidelity to the position come before veracity and principle. One does not "rat", sneak, or leak in such positions, even if the material might disclose mismanagement, loss or corruption. 

The Australian public servant, in Dutton’s view, is a slate upon which to impose a policy program. 

Question its wisdom at your own peril: 

“We’re not going to have people who are involved in running political campaigns whilst they’re employed by the Australian tax payer — campaigns against the government of the day.”

Banerji’s former boss, Sandi Logan, did little better in explaining on Twitter that,

'as public servants, we had an obligation to provide the government of the day fearless and honest advice/counsel, without allowing personal preferences/opinions/beliefs to hinder the process.' 

Such personal opinions or beliefs would somehow empty the advice of substance — a truly jaundiced interpretation of a public servant if ever there was one.

Free speech "advocates" such as Liberal Senator James Paterson – as they so often do – again demonstrated a shallow understanding of free speech concepts. Free speech is fine, but best left at the door of your employment. 

Argued the senator in response to the Banerji ruling:

“There are some areas where it should be permissible for an employer to restrict what an employee can say on social media, and that is where it is directly relevant to their employment.” 

And, just to show the weakness of his reasoning, Paterson accepted that Banerji might well be critical of government policies, as long as they were “not directly relevant to her re-employment”

The implications of Banerji are going to be felt far and wide. 

Workplace relations expert Anthony Forsyth observed:

“The decision confirms the steady march of employer control over workers’ private views and activities, supported by courts and tribunals over many years.” 

Having a public service where employees are denied a platform for expressing political opinions makes for a poorer public service and distinctly poorer policy. To regard public servants as apolitical is tantamount to seeing them as amoral, executing the policies of the day with blind obedience. Precedents of history demonstrate how dangerous that path can be.

Dr Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. You can follow Dr Kampmark on Twitter @BKampmark.

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