If no truths are spoken then no lies can hide… Comcare v Banerji was a win for democracy

‘Petty dissidents, i.e., employees who argue with their bosses over matters of every day business judgment, or who slander their supervisors, or who bad-mouth their companies’.  It was into this category that the Administrative Appeals Tribunal characterised Michaela Banerji, with the greatest respect. ‘[T]he tone of her tweets carried her contributions beyond mere education and into the realm of partisan advocacy and personal vitriol.’

I have always been caught between the legal beauty of the Banerji cases and the broader philosophical questions that arise. Over the next week or so, I’m going to jot down a number of ideas that the decision has inspired.  There is a lot going on here, and there is a broader query about the nature of the freedom of speech in Australia.  The High Court found against the anti-abortion protestors in Clubb v Edwards, but there didn’t seem to be the same wailing and gnashing of teeth on social media.  Perhaps — and I don’t think there’s anything inherently wrong about this — we just like it when people we like win, and dislike it when people we like lose.

There is a lot of media-inspired anxiety about this case.  This blog isn’t legal advice, so don’t point to it if you are a public servant and get pinged by your supervisor.  The purpose of this one is to set out why nobody serious should be all that worried about this case.

Image result for homer simpson local man ruins everything

We really need some background.  If you are a public servant and you tweet some spicy, spicy stuff on Twitter, what happens is that your supervisor says: ‘Hey, don’t do that.  Pull your head in.’  And then it’s over.  If you do it again, they start to look at the Code of Conduct.

99.9% of the time, everybody is a normal sensible person about this stuff.  Everybody knows that you don’t post hog wild hot takes on Twitter about your own work.  And so, for the most part, people don’t.  Thus, there is absolutely no problem.

The Banerji case was different.  Ms Banerji inexplicably thought it was a good idea to tweet about her work, and tag in her boss on some of her sledges.  She had pictures of her Twitter avatar up at her desk so Sandi had surprisingly little difficulty working out who was behind the account.  He reported it; she self-represented in the Federal Court to prevent the Department from sacking her; she got sacked; she sought workers compensation for being sacked; the Administrative Appeals Tribunal inexplicably found in her favour; today, the High Court returned the universe to normal.

It’s really important that everybody recognises that this was not normal.  Sledging your boss on Twitter, even sledging your employer on Twitter — most people recognise that this is not a good career move.

The inexplicable part about this case was that Ms Banerji thought that her sledging her colleagues and employer should somehow get a constitutional protection that is not afforded to public employees.  That’s the part that’s wildest for me.  Imagine recognising that your employer takes ‘reasonable administrative action taken in a reasonable manner in respect of [your] employment’, and then try to sneak out of this by claiming that there’s some mysterious implied constitutional right that means your employer can’t take those reasonable steps.  It is absolutely appalling.  Everybody who reads through the case should be utterly gobsmacked that somebody would try this on.

Far from living under a draconian reign where public servants have their freedom of speech severely curtailed, the APS actively facilitates appropriate participation of public servants in the democratic process.  The most well-known of these is the ‘right of return’.

Under section 44 of the Constitution, people who hold offices of profit under the Crown are ineligible to stand for elections.  The APS found a sneaky way around that through section 32 of the Public Service Act 1999:

32  Right of return for election candidates

(1)  This section applies to a person if:

(a)  the person resigned as an APS employee in order to contest an election specified in Commissioner’s Directions issued under subsection 11A(1); and

(b)  the resignation took effect not earlier than 6 months before the closing date for nominations; and

(c)  the person was a candidate in the election but failed to be elected.

(2)  The person is entitled to be again engaged as an APS employee, in accordance with Commissioner’s Directions issued under subsection 11A(1) and within the time limits provided by those Directions.

You read that right.  If you’re a public servant and you want to stand for election, you can resign to avoid section 44 of the Constitution, knowing that you have a right to your job if you’re not successful.

A less well-known one is the right under the Australian Public Service Commissioner’s Directions 2016 to access leave without pay in order to go work as a ministerial advisor.  That is, if you want to go take up a partisan position within our democratic system, you have an entitlement to leave without pay in order to access it.  It is so sweet.

Basically, nobody should be worried that there is an unreasonable clamping of speech just because you accept the ‘Queen’s Shilling’.

And we can see that in the decision.  Ms Banerji, whose tweets were ‘reasonably characterised as intemperate, even vituperative, in mounting personal attacks on government and opposition figures’, was pinged under the Code of Conduct.  Everybody recognised that the Code of Conduct was an effective burden on political speech — Ms Banerji was not permitted to make public comments about particular political topics.  Note that this is narrow.  The legislation did not ban all political speech: only that which failed to ‘uphold’ the APS Values and the integrity and good reputation of the APS within the meaning of s 13(11) of the Public Service Act.  The plurality decision of the High Court says that Ms Banerji must be taken ‘to have accepted that her conduct in broadcasting the “anonymous” tweets was conduct which failed to uphold the APS Values and the integrity and good reputation of the APS within the meaning of s 13(11) and that, but for the implied freedom, the sanction of dismissal was warranted’.

What we are arguing about here is really, really narrow.  It’s not that all public servants are prohibited from making political comments (which is the way it used to be back in the early days of the public service).  It’s that public servants are prohibited from making political comments that fail to uphold the APS Values.

A friend of mine had a really good example of some of the difficulties here.  The APS invests a lot of resources into demonstrating what an inclusive workplace it is, striving to be an ’employer of choice’.  The APS — correctly — celebrates its diversity, and endeavours to be more inclusive and diverse.  But when the plebiscite on marriage equality was being debated, a friend of mine who worked in the legal areas of the APS felt that she was not permitted to express her views on the topic.  Friends of mine in other areas of the public service were much more comfortable expressing their views, but in key areas of the APS, there was a sense that LGBT public servants should be seen to be impartial — which, in effect, meant ‘pass for straight’.

Prior to Banerji, the APS would have had to tiptoe here, which is what it did.  To my knowledge, it didn’t outright say that you weren’t to be seen to support the plebiscite, but John Lloyd really did seem to send a veiled threat to everybody who thought that they would. With Banerji, the APS probably would have been on safer ground stating that public servants who worked in legal areas would need to uphold the APS values by not engaging in public debate on the topic.

So although what we’re arguing about is really narrow, in some areas we are touching on really important issues.

The Court found that the burden on political communication served a ‘legitimate purpose’: ‘There can be no doubt that the maintenance and protection of an apolitical and professional public service is a significant purpose consistent with the system of representative and responsible government mandated by the Constitution.’

This, for me, is the most important part about the decision.  The APS is essential to democracy in Australia.  The relationship between the APS and Ministers depends significantly upon trust.  Perhaps more importantly, the relationship between public servants themselves depends on trust.  In order to do their work, they need some level of assurance that the person they’re working with isn’t going to go rogue in public comments.  Sure, if they’re doing something illegal, report it to the correct authorities.  But the relationship of trust depends on the idea that one of your colleagues isn’t going to start sledging your work on social media through a faux-anonymous cloak.

And the correct place to establish where those guidelines should be is in Parliament.  The democratically elected organ of the State should have near complete ability to determine how the relationship between Ministers and the APS will operate.  There should be minimal interference by the Court on this.

Imagine if the Court had found the other way.  Imagine if you couldn’t sack an employee of the APS for expressing extremist views about non-white immigration while they worked in visa processing.  Imagine if you couldn’t sack an employee of the APS for expressing completely unhinged conspiracy theories about members of Parliament.  We depend upon a professional and apolitical public service for our system of government to work, and Ms Banerji could not accept that.

The Court also found that the Code of Conduct was suitable, necessary, and adequate in its balance.  Significant discussion of the way that the APS deals with the Code of Conduct influences the Court’s view that the balance is met.  Termination is for the serious cases, minor sanctions for the lesser cases.  It’s here that public servants worried about Banerji should focus their attention: part of what makes the Code of Conduct well-adapted is not that you can be sacked for every political utterance you make, it’s that you run the risk of getting sacked if you stray ‘into the realm of partisan advocacy and personal vitriol’.

Framed differently, Banerji makes the plebiscite example more difficult, but (everything else being equal) the LGB public servant who tweets on Twitter that everybody should Vote Yes is probably not going to get the sack, even if they do work in one of the legal areas of the APS.  The closer you are to actually managing the plebiscite, maybe that’s a different matter.  Banerji adjusts the risk setting a bit higher than it was before, but not radically so.

To conclude: should a public servant be worried about Banerji?  Not really.  There will be some fringe cases where the risk settings are calibrated slightly differently, but most people who are using their commonsense will be entirely fine.  The Court found that the Code of Conduct burdened political communication, but the role of the Public Service was so essential to our system of responsible government that prohibiting particular kinds of political communication was considered legitimate.  And this isn’t a sledgehammer approach: this is a law that is well-adapted to ensure that it goes far enough but not too far.  Public servants should not be unduly worried that any and all political speech will be punished, but if you’re going to go march in the pro-asylum seeker rally, take off your lanyard.

Author: Mark Fletcher

Mark Fletcher is a Canberra-based PhD student, writer, and policy wonk who writes about law, conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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