Are we surprised that starting a flamewar with @SandiHLogan isn’t constitutionally protected speech? #auspol

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twitter fail image (Photo credit: Wikipedia)

Yesterday, Twitter was abuzz with a story about a public servant, Michaela Banerji, who had been sacked for tweeting anti-government messages on her account, @LaLegale. Much to Markus Mannheim’s credit, the story was corrected to better reflect that Banerji had not been sacked (EDIT: Apparently, the text wasn’t corrected — Twitter just got the detail wrong; see comments). Even so, Twitter is always ready for a good outrage.

Banerji was a public affairs officer at the Department of Immigration and Citizenship. Her branch head, Sandi Logan, is a prolific user of twitter (@SandiHLogan). By day, Banerji’s job was to communicate government policy. By night, she was attacking said policy and directly attacking Logan over Twitter.

An internal review was conducted to see if Banerji had breached the APS Code of Conduct and the Department’s Social Media Guide. The Australian Public Service Commission has released guidelines for public servants’ use of social media in their personal capacity. When outspoken blogger and commentator, @drag0nista, was revealed to be political adviser, Paula Matthewson, Twitter went nuts about the APSC’s social media guideline (which I wrote about here).

There is a little bit of hypocrisy in the public debate. When people like Logan and Matthewson express their opinion, it’s considered to be a breach of the guidelines. When Banerji expressed her opinion, she’s a hero who deserves protection. It’s one of those unusual verbs: people with whom I disagree breach the social media guidelines; people with whom I agree deserve protection.

When Banerji was approached about the account, she lied and denied that it was her. It was also revealed that Banerji was working a second job in breach of her employment contract. The review concluded that:

a. the comments made by the Applicant on Twitter demonstrated a failure to behave with honesty and integrity in the course of her APS employment and in a way that upholds the APS valuesand the integrity and good reputation of the APS. In addition,the comments made by the Applicant were in breach of the Department’s policies and media use; and

b. the Applicant had engaged in outside employment without appropriate approval [Source]

Banerji began a process in the Federal Circuit Court to cause a number of things to happen. In short, she wanted the Court to prevent the Department from sacking her on the grounds that her tweets were protected by the Constitution.

Unfortunately, because the entire case is a sweet mess, it is difficult for anybody to discuss the matter with any great clarity. Today, there will be people championing Banerji’s right to protest against the Man. Plus, isn’t ‘Sandi’ a girl’s name?

LOLOLOLOLOLOL. Or something.

Anyway, Neville J found that Banerji didn’t have the sort of constitutional protection that she thought she had and didn’t have a reason to provide her the relief that she sought.

Let’s forget the Banerji case because it is such a personal mess and think instead of a much more straightforward case.

There’s a public servant sitting at the desk next to Banerji who, up until today, has been the ideal public servant. She only has one job, she’s honest, and she only retweets pictures of cats.

She goes home one night and writes something exceptionally unhinged on Twitter: ‘All asylum seekers should be shot and the Greens party should be hung.’

The comment doesn’t breach confidentiality but does speak to her ability to perform her job impartially. Somebody happens to know that she works for the Department and reports it. The comment is considered to be so unhinged that she gets a call from the investigations team the next morning. She admits to the account being hers and, for some reason, refuses to agree to be counselled.

Investigations recommends to the Secretary that she be sacked. The Secretary agrees and so she sues.

I imagine that there would be few people championing our fictitious public servant’s right to make these comments. Indeed, former leader of the Greens, Bob Brown, once called for public servants to be sacked based on rumours of their advice.

The Constitution doesn’t have a guaranteed right to free speech. The right to political communication is an ‘implied right’ and the high water mark for this implied right is a case called Lange v Australian Broadcasting Corporation. The court seems to find that this implied right is a bit like a pendulum. Before Lange, the right had been a bit broader. After Lange, it has been increasingly unclear what counts as protected speech. Even so, it’s never been claimed by the courts that it’s an unfettered right (which is what Benerji was trying to claim, but failed to do so — lesson: don’t represent yourself).

Lange has two parts which — like most Australian ‘rights law’ — does a splendid job of putting two perspectives into contest. On the one hand, the applicant has to show that their speech (or act) should be protected because it affects their ability to communicate information about government or politics. On the other hand, the respondent has to argue that their restriction of the ability to communicate this message serves some greater purpose to warrant curtailment.

Would public servants ever have their political communications protected? Section 44 of the Constitution already suggests that public servants aren’t supposed to be political players, being expressly disqualified from standing for parliament (a provision that we stole from the English). Public servants are supposed to be impartial, non partisan, and balanced. Political communication of the kind ‘Shoot asylum seekers and hang the Greens’ suggests that the public servant wasn’t capable of being impartial, non partisan, and balanced.

In this sense, the second prong of Lange would show that there’s a good reason to curtail the ability of public servants to make public comment of an extremely partisan nature.

There’s an element of the commonsensical about the issue. There wouldn’t be much problem with a public servant taking part in a march for asylum seeker rights, for example. There might be more of a problem if the public servant who worked in asylum seeker policy was leading the march…

As an aside, I think this view of impartiality is completely and utterly incorrect. Instead, I think that public servants — like journalists and opinion writers — should be open about their biases and prejudices so we can actually ensure impartiality instead of having to play a guessing game. But for the purposes of the conventional understanding of impartiality — to not expressly state that you are partial — it seems like an open and shut case that the government could argue it.

Banerji v Bowles won’t end up being a landmark case in the question of public servants’ use of social media. Expect to see some early 20s, white, male graduate who blows off steam one day on Twitter and then refuses to back down when he’s given an informal warning. He’ll have been a model public servant up until that moment and it will be a clear cut case of ‘Can public servants really say whatever they like on Twitter about political issues?’

The safe money is on the High Court saying no.

In the meantime, public servants have to play the sensible game. If you work twenty feet away from Sandi Logan’s office, don’t start flame wars with him. If you’re asked about your Twitter feed, admit that it’s yours and agree with your EL2 to be careful using it. And if your job is to communicate government policy, don’t spend your evening actively undermining your branch’s work. It’s not hard.

For everybody else, we have to ask what we want of public servants. Banerji was popular on Twitter because she was stating what the mostly left wing echo chamber of Twitter wanted to hear. But if she had been slagging off Sarah Hanson-Young or berating Penny Wong, I’m almost certain that Twitter would have wished Banerji a good riddance from a salary funded form the public purse (even though she hasn’t actually been fired). Indeed, we would have seen the same reaction that Matthewson and Logan get whenever they say anything contentious.

(EDIT: Banerji contests some of the points made in this entry.  See comments below.)

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13 thoughts on “Are we surprised that starting a flamewar with @SandiHLogan isn’t constitutionally protected speech? #auspol

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  2. You state in your tweet to me that you are happy to correct the errors in your blog. These are the errors.

    1. I have not been sacked – it is a proposed sanction, yet to be decided.

    2. I was not attacking policy, nor did I attack any person, least of all my boss Sandi Logan

    3, I did not lie about or deny that the account was mine.

    4. My outside employment approval had simply only expired. I had had approval for both paid and unpaid voluntary involvement in community activities.

    5. My case is not a mess. It is simple. Do public servants have a right to express political opinion or are they a class of persons who do not have that right? I did not seek an unfettered right, I argued that the PS Act fetter is not reasonable, nor adapted, nor to a legitimate end. Court did not consider this aspect of the my submissions.

    6. It was not my job to ‘communicate government policy’, and my work has never been compromised.

    7. I am not ‘left wing’.

    Thank you for your interest and for taking the time and trouble to comment.

    Michaela Banerji
    LaLegale@iinet.net.au

    • Hi Michaela,

      1. I also said that you hadn’t been sacked.

      2. We disagree over the interpretation of this: http://images.smh.com.au/2013/08/13/4656536/mannheim-tweet-narrow-20130813073208157545-300×0.jpg

      3. ‘Ms Banerji initially denied the Twitter account was hers, but in October last year her investigator, Robyn White, wrote she was ”satisfied that, on the balance of probabilities, the evidence provided, although circumstantial, does support the conclusion that the LaLegale account is yours”.’

      4. So the comment in the blog is accurate.

      5. The decision handed down disagrees.

      6. You were a public affairs officer. I guess that’s a matter of opinion.

      7. We disagree over the interpretation of this: http://images.smh.com.au/2013/08/13/4656536/mannheim-tweet-narrow-20130813073208157545-300×0.jpg

      I’ve noted in the entry that you disagree with the comments as a way of demonstrating balance.

      Warm regards,

      – Mark

      • 2. Errr what?

        Pointing out, anonymously, to your boss, that something violates international law and is found immoral is an attack now…?

        How fragile is Sandi here? How fragile are you by extension?

        At least it makes your opinion on Simon Gleeson clear, but i’m disappointed that you seem to think shooting a messenger who is doing the job of warning about a 3rd party’s reaction is a legitimate political maneuver, particularly when this government needs all the help it can get to identify what the public actually want or what the Supreme Court will tell them is unconstitutional.

        You keep doing this thing where you implicitly claim to know more about the environment than the people in it, based on things like job titles having hard boundaries… but at the same time seem to want to claim those boundaries don’t appear or affect parliamentary business or parliamentary rules, as if parliamentary staffers are the only ones with enough insight to know there is an interaction between rules and practice meet, as if that representation itself isn’t an external one… It kinda affects your analysis in my opinion.

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