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.

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.

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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