Attorney-General Christian Porter

Political speech and free speech under attack by the Scott Morrison government

The High Court of Australia has curtailed the rights of public servants to express their views on political matters in a major way in yesterday’s judgment in Comcare v. Banerji. The case related to former public servant Michaela Banerji who was sacked for tweets she made critical of the Immigration Department where she worked at the time of her sacking.

Ms Banerji tried to stop the department sacking her in 2013 which she lost in court. But she was successful in getting compensation for her sacking for stress and that is what yesterday’s judgment was about as the High Court overturned her right to compensation which is what the Attorney-General Christian Porter and the Morrison federal government wanted.

The Canberra Times reported:

The nation’s highest court has found the federal government’s limits on free speech in the public service are constitutional, in a decision that clears the way for punishments targeting bureaucrats who express political views.

High Court judges handed down the decision on Wednesday after a six-year legal battle over the Immigration Department’s dismissal of ex-public affairs officer Michaela Banerji for tweets critical of the government.

Ms Banerji used an anonymous Twitter account so no one knew until one of her colleagues noticed that the screensaver picture of her work computer was the same as the pictures used for the Twitter account that had annoyed management at the Immigration Department. It raises the question: Did someone issue a dodgy warrant for her metadata given it has recently been reported that Canberra Police admitted “they unlawfully accessed metadata more than 3,000 times” in 2015. (Click here to read more) I haven’t read the full judgment, all the other judgments and all the evidence so maybe the answer is in there.

Michaela Banerji

Michaela Banerji

The Saturday Paper reported some background information in March 2019:

After her termination in 2013, Banerji suffered health issues and lodged a workers’ compensation claim with government insurer Comcare. But this was refused and so Banerji sought review in the Administrative Appeals Tribunal (AAT) on the basis her termination was invalid for breaching the constitution’s political communication protection.

The AAT agreed. In April 2018, a two-member panel drew a bright-line distinction between limitations on public comment that was attributable to a government employee, for which it found compelling policy justifications for termination, and restrictions on anonymous comment. Banerji, who posted online anonymously using a pseudonym, fell into the latter camp – seemingly posing little risk that someone could determine she was a public service employee. In these circumstances, the AAT held that restrictions “bear a discomforting resemblance to George Orwell’s ‘thoughtcrime’ ” and that Banerji’s dismissal was unconstitutional.

At issue in Comcare v Banerji is the ability of public servants to express political views. Its ultimate ruling could affect not only the 240,000 employees of the federal government, but also state and local government workers – 16 per cent of the Australian workforce in total. The respondent, Michaela Banerji, was employed by the Department of Immigration until 2012, when her criticisms of government border protection policy – tweeted out under the pseudonym @LaLegale – came to the department’s attention.

Her tweets included one asking Scott Morrison and then Home Affairs minister Jason Clare if they had read the Refugee Convention. Another attacked Australia’s treatment of asylum seekers: “Where states fail to offer legal asylum to refugees, that state fails. #itsnotwelfare”. On Wednesday Solicitor-General Stephen Donaghue characterised them as “intemperate, even vituperative, in mounting personal attacks on government and opposition figures”. It was a colleague who first put the dots together, after noticing Banerji’s screensaver used the same image as @LaLegale’s profile picture, after which the department started an investigation. (Click here to read more)

It is well-known government departments spend a lot of money monitoring social media about their own departments and I’m sure the Prime Minister’s office would as well. So, I wonder if Scott Morrison had someone investigate Michaela Banerji’s @LaLegal twitter account after she asked Morrison if he “had read the Refugee Convention” which would have embarrassed him publically on Twitter?

Was it also motivation for Attorney-General Christian Porter to intervene in the matter and have it removed to the High Court of Australia and/or was he instructed to intervene by Scott Morrison?

Click here to read the High Court of Australia’s full judgment, click here to read a one-page summary and to read the written submissions by the Commonwealth, the States and Ms Banerji’s lawyers click here.

The bottom line to the judgment is that the High Court judges have unanimously decided that public servants need to be nonpolitical and that need overrides their implied freedom of political communication which is protected in the constitution as outlined in the 1997 High Court judgment Lange v ABC.

After Michaela Banerji won compensation in the Administrative Appeals Tribunal (AAT) in 2018 Comcare appealed to the Federal Court of Australia but before the Federal Court could hear the matter the federal Attorney-General Christian Porter intervened and had the case removed to the High Court of Australia. From then on, it was in reality, no longer “Comcare v Banjerji” but “the Scott Morrison federal government v Michaela Banerji” so Scott Morrison and the government have to take ownership of the judgment they drove and wanted.

The question many pubic servants will be wondering is: Will Scott Morrison or other politicians try to use the High Court precedent to try and silence public servants and/or others even more?

There has been a lot of criticism of the High Court’s judgment on social media since it was handed down at 10am Wednesday (7/8/19) and much of it I agree with and it’s also worth noting what the former High Court judge and Banking Royal Commissioner Kenneth Hayne is quoted saying in the media yesterday:

In his first public statement since handing down the findings of the financial services probe in February, Justice Hayne contrasted the independent and transparent nature of royal commissions against the “opaque” and “skewed” decisions of politicians influenced by those “powerful enough to lobby governments behind closed doors”.

Justice Hayne said the need for royal commissions into the finance sector, aged care and disability services showed Australia’s legislative, executive and judicial branches were not working as they should. (Click here to read more)

Ther are numerous other political communication and freedom of speech matters currently before the lower courts. Some of these matters will likely end up in the High Court of Australia so the stance by the High Court will hopefully be clarified further with judgments in other matters but the High Court of Australia runs a real risk of doing substantial damage to its reputation if it continues to side with government and big business to undermine the public’s rights.

The High Court summarily dismissed my application for special leave to appeal in May 2019 regarding my free speech and political communication appeal and only said it: “would not enjoy sufficient prospects of success to warrant the grant of special leave to appeal”. That in itself is disturbing as it means nothing and has no detail to justify their decision so the only thing it achieves is undermining the public’s confidence in the High Court as they are meant to be held accountable by giving detailed judgments to support their decisions.

I currently have three applications pending in the High Court of Australia to have Kerry Stokes’, Seven West Media’s and Capilano Honey’s SLAPP lawsuits removed to the High Court and they also involve free speech and political communication issues as well. (Click here to read more) Hopefully, I will have news on those matters in the near future.

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14 replies »

  1. Hardly fair to blame a Morrison Government when she committed the Acts under a Gillard/Rudd Government. That it’s taken this long to go through the Courts should be well appreciated by yourself. It is a High Court Judicial Decision and not a Political one so should be treated and respected as such.

    • A bit rich to blame Gillard/Rudd. As I point out in the article it was driven by the current attorney-general who decided to intervene and argue against her political communication defence.

  2. In truth, the High Court’s decision is actually unconstitutional because their opinion that the public service is supposed to be apolitical is not defined or stated anywhere in that old, antiquated and out of date 19th century British Act the politician and lawyers choose to use as their Australian Constitution. While it might be a valid wish that the public service should be apolitical, that wish, of course, is a total farce when we allow the sitting Government to appoint their mates and political supporters to Government positions. Despite the fact the High Court is allowed to make these unconstitutional decisions based on personal opinions and not legalese, if one were to actually read the decision, it could, or should be interpreted, that the limitation only refers to political comment. Unfortunately, “political comment” is not defined and it is probably in the lap of the gods whether comments on inefficiencies, corruption, nepotism, rorting and special favours might be construed as “political”. It would probably come down to the political leanings of the commentator and whether those leanings were in opposition to the sitting Government at the time. Of course, the real problem is the virtual total and absolute ignorance on the part of the general public regarding that antiquated and out of date 19th century British Act the Government and the legal profession choose to use as their Australian Constitution. It is a verifiable fact that the British Act has never once in its history been presented to one single voter in Australia for their approval or acceptance. If the general public were actually to read that awful Act they would be appalled at the way it has been manipulated and distorted by the politicians and lawyers over the past century, and not the least by the various High Courts and their split decisions. Every split decision is a flawed decision because it is based on opinions and not legalese. No High Court has executive authority and if a unanimous decision can’t be reached the issue should be handed back to Parliament to resolve, not left in the hands of seven unelected people to “make law.”
    Any Primary Law of a nation, such as this British Act, that includes a provision such as Section 5 in Clause 9 that allows the Governor General to “dissolve the House of Representatives by proclamation or otherwise” very clearly sets up the political system as a dictatorship with the Governor General also being the Commander in Chief of the Armed Forces. That position is reinforced by the fact there is no such position as a Prime Minister in the British Act and neither is there any recognition of political parties.
    Check out the blog http://www.aussieindependence.com and the book, “The Australian Constitution as it is Actually Written” for more insight to the British Act that is still law of the British Parliament and has never been repealed.

    • “their opinion that the public service is supposed to be apolitical is not defined or stated anywhere in that old, antiquated and out of date 19th century British Act the politician and lawyers choose to use as their Australian Constitution.”

      No, but it IS in the 1999 Public service act, which created the APS. ( https://www.legislation.gov.au/Details/C2019C00057 )

      Part 3, section 10, point 5 “The APS is apolitical and provides the Government with advice that is frank, honest, timely and based on the best available evidence.”

  3. I don’t often disagree with you, but this person brought this upon herself. If she had been in private enterprise and sent dodgy tweets about the business, she would have been sacked immediately. Perhaps she could have worked from within the system?

    • Onya Terry Ryan. I am of the old generation but once there was a thing called “loyalty to an employer”. Seems to have disappeared in this case and in many other instances these days.

  4. The High Court judgement was an excellent legal and common-sense decision to correct a mistake made by inferior jurisdictions regarding Public Service employee responsibilities. Overpaid, pampered public servants are employed to carry out the requirements of the elected government and adhere to the Public Service Regulations. It is apparent that many are politically motivated and attempt to sabotage the government of the day. This behaviour cannot be tolerated, and the offenders must be dismissed.

  5. Published on The Guardian today, 8/8/19, by Greg Jericho

    Social media is now a dangerous space for public servants – they are being locked out of modern life

    The restrictions on public servants were nicknamed after me. This week’s high court ruling is troubling

    As a former public servant I can tell you that notoriety is definitely a career-limiting trait to acquire. Perhaps this is even worse for the public servant whose notoriety lives on after he or she has left the service.

    In 2010 I was outed by the Australian as the pseudonymous blogger of Grogs Gamut – a blog covering politics and economics, written while I was a public servant.

    I was not sacked, because the department found that I had not written anything that was confidential or about my area of work. I was instructed not to tweet during work hours (fair enough) and that was it. I continued to blog, continued to write provocative posts including some critical of the Labor party’s asylum seeker policy – as well as more than a few that slapped the bejeebers out of Liberals including Tony Abbott and Scott Morrison (one was headed “Morrison goes for the gutter; Abbott is gutless; Hockey steps up”).

    I left the public service in the middle of 2011 at a time of my own choosing and on wonderful terms with my bosses and colleagues.

    Then, in early 2012, the Australian Public Service Commission introduced new guidelines for public servants’ social media/internet use. They were dubbed “the Jericho amendments” and included changes that precluded public servants from making comments online in a private capacity that are “so harsh or extreme in its criticism of the government, a member of parliament from any political party, or their respective policies, that the employee is no longer able to work professionally, efficiently or impartially”. Read more: https://www.theguardian.com/commentisfree/2019/aug/08/social-media-is-a-dangerous-space-for-public-servants-they-are-being-locked-out-of-modern-life

  6. So, could it be possible that the AFP et al may interpret this ruling such that anybody employed by the ABC (Government) can be dealt in the same manner? Could we see all government employee reporters sacked and prosecuted?
    QUicksand for free speech and freedom of opinion. Whistleblowers beware!
    .

  7. Does this verify my theory that all Australian Public Servants have no conscience because to form a political opinion one requires a conscience and to have a political opinion one utilizes ones conscience. This means that it has now become a requirement that to work for government in Australia one must be the type of person who does not give a damn and does not care. It also means that the government structures can do whatever they devise to steal, rob rape and pillage the community and those who are employed by them must obey. Very much how the Nazis worked.

  8. If public servants have to be nonpolitical this would then mean that they don’t have to vote in any state, territorial or federal election, and if they do vote then they would be fined. Let’s all become public servants.

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