,
25 tweets,
7 min read
Read on Twitter
Thread: On Wednesday, the @HighCourtofAus hears @comcare_gov_au v Banerji (@LaLegale), one of the most important free speech/freedom of political communication cases in years. At issue is whether the govt can legally terminate an APS employee for their political communication.
The respondent was a Department of Immigration employee in the early 2010s, tweeting criticism of government border protection policy via a pseudonym. One of her colleagues suspected the tweets came from her; the Dept investigated and proposed to terminate Banerji's employment.
Banerji sought an injunction in the Federal Circuit Court, contending the proposed termination was unconstitutional by reference to a broad free speech right. In August 2013 Judge Neville rejected the application: 'The unbridled right championed by Ms Banerji ... does not exist'
Neville J: 'I do not see that Banerji’s political comments, ‘tweeted’ while she remains (a) employed by the Dept, (b) under a contract, (c) formally constrained by the APS Code of Conduct, and (d) subject to departmental social media guidelines, are constitutionally protected.'
Banerji was sacked, and for a while it seemed that might be the end of that. But after suffering health issues as a result of the termination, she lodged a Comcare claim. It failed at first instance, and on review. She appealed to the @aat_gov_au.
Context: since the early 1800s, government employees in British Whitehall-style bureaucracies have had an 'obligation of silence'. There is a public interests in this: an impartial and apolitical public service is, in many respects, a good thing.
But in recent decades, courts in the UK, US, Canada, Australia and elsewhere have grappled with the fact that government employees are citizens too, and they deserve political rights. You also can't contract out of constitutional rights or freedoms.
Until now, the leading Aus case was Bennett v HREOC (2003), where Finn J invalidated a long-standing secrecy obligation on public servants on the grounds that it was contrary to the (then-new-ish) implied freedom of political communication jade.io/article/108081
Returning to Banerji: in April 2018, the AAT held that Banerji's termination could not be reasonable administrative action (which is otherwise an exception to workers' compensation obligations) because it was unlawful on implied freedom grounds.
The AAT placed emphasis on the fact that, by tweeting via a pseudonym, Banerji was not identifiable as a public servant - either individually or as a class. That proved critical in finding that the termination was ultra vires.
'Almost all of the public policy considerations … cease to apply where the identity of the interlocutor is unknown. On the contrary, restrictions in such circumstances bear a discomforting resemblance to George Orwell’s thoughtcrime’ classic.austlii.edu.au/au/cases/cth/A…
Unsurprisingly, @comcare_gov_au appealed and the Attorney-General removed the appeal to the @HighCourtofAus. There are three primary issues relevant to the determination of the appeal.
1) How should the relevant section of the Public Service Act, which requires APS employees to 'at all times' uphold the APS Values and the good reputation of the APS, be interpreted? Banerji contends for a narrow construction, whereby her conduct is not even covered.
That would see the constitutional issue fall away; her termination would be invalid for an absence of statutory power. The govt also argues for a narrow construction (in an attempt to deflect constitutional scrutiny) but says the provision is wide enough to cover Banerji.
In doing so, the govt seek to read down 'at all times' to be heavily content and context dependent; so, not really at all times. In my view, this construction cannot be sustained and the govt should face up to the constitutional consequences of its statute.
Unless HCA accepts Banerji's construction argument, we come to 2) how do we assess an individual decision's compliance with the implied freedom of political communication. Almost all prior implied freedom litigation has been directed at the statute, so there is little case law.
The Cth says the implied freedom is a freedom, not a right, and therefore the validity analysis must take place at the level of the statute. Banerji says the relevant Lange/McCloy test can take place within the context of the individual decision, in a quasi-admin law process.
The @AusHumanRights seeks to intervene on this point + others, stressing that the implied freedom is as much a constraint on executive power as it is on legislative power. Its submissions are strong (PDF) hcourt.gov.au/assets/cases/0…
The review methodology for scrutinising Banerji's termination could be decisive; the burden is considerable in an individual context, less so at the legislative level when the APS Code of Conduct operates happily to thousands of disciplinary issues with no communication element.
Finally, 3) - in light of 1) and 2), is Banerji's termination constitutional or not? If yes, the HCA's decision will embolden the govt's ongoing encroachments into the private lives of employees - see eg theguardian.com/commentisfree/…
If no, the consequences depend on methodology. If the review takes place at legislative level, a finding of illegality would indicate a core provision of the APS CodeofConduct is unconstitutional. If the review is to the termination itself, the consequences are less far-reaching.
In any event, @comcare_gov_au v Banerji (@LaLegale) will have an important impact on the development of implied freedom jurisprudence and on the political engagement of Australian public servants.
For those interested, I wrote a broad background to the case for @canberratimes @PSInformant canberratimes.com.au/politics/feder…
My thoughts on these issues generally, and the potential for a third, middle-way review methodology, are articulated in the latest Public Law Review sites.thomsonreuters.com.au/journals/2019/…
And finally, I have critiqued the submissions of all parties in the forthcoming edition of the Sydney Law Review sydney.edu.au/content/dam/co…
