Banerji

'Balancing Public Servants’ Responsibilities with the Implied Freedom of Political Communication: What Can We Learn from Banerji?' by Shireen Morris in 2021) Monash University Law Review comments 

There is a long-standing institutional tradition that requires public servants to refrain from participating in public debate, in the interests of preserving APS impartiality. At the same time, there is recognition in APS guidelines that public servants are also citizens entitled, to some extent, to express their political views. Comcare v Banerji presented an opportunity to resolve these competing tensions, yet the case leaves us with various uncertainties about whether and how public servants can contribute to public debate. This uncertainty has several potential consequences. First, without principled criterion by which to assess public comments, managers might err on the side of caution and overreach in restricting employees’ speech. Second, government employees might self-censor for similar reasons. Third, when gagging of public servants goes too far, this can itself appear politically biased, compromising APS impartiality and professionalism. In this paper, we argue that public servants are constitutional actors. Like other constitutional actors, they should be allowed to wear two hats, to enable a reasonable level of free speech in their private and expert capacities. We propose policy recommendations building on the Justices’ proposals, that may help clarify a better balance between public servants’ responsibilities and the freedom of political communication.

'Public Servants and the Implied Freedom of Political Communication' by Anthony Davidson Gray in (2021) 49(1) Federal Law Review comments 

The High Court of Australia recently overturned a tribunal decision in favour of a public servant who was dismissed after sending tweets critical of various politicians and government policies. All members of the Court found the relevant provisions were valid and did not infringe the implied freedom of political communication. This article first discusses development of freedom of speech at common law, through development in ideas about governance from a Hobbesian tradition to a Lockean model of representative government. Notions of representative government underpinned earlier High Court decisions on freedom of political communication, reflecting values such as the sovereignty of the people, accountability and informed decisions at election time. The article then considers restrictions on the ability of public servants to contribute to public debate in that light. Scholars and courts elsewhere have recognised the important contribution public servants can make to representative democracy. The recent decision pays insufficient interest to such contributions and is too willing to accept government arguments as to the need to suppress opinion by public servants in the name of an apolitical and independent public service, without considering counter arguments in terms of democracy, and without sufficient evidence of actual or likely interference with government functions. The proportionality analysis undertaken by the court was inadequate in its failure to do so. Whilst the freedom of communication of public servants is not absolute, restrictions must be narrowly confined and fully justified. Neither test was satisfied in this case.

Gray argues 

(T)he scrutinised, as a class, always want to do their work on their own terms. Their lives are much easier if they never have to explain why taxpayer money gets wasted, they want to spy on citizens, or people are locked up without cause. Ignorance has never been a solid basis for citizenship or a method to get the best out of elected governments. 

In a recent decision, the High Court of Australia unanimously overturned a decision of a tribunal that had found in favour of a federal public servant in a compensation case. The public servant had been dismissed after sending numerous tweets critical of various officers in political life, including ministers and members of the opposition. The public servant had argued that the Code of Conduct under which she was dismissed was in conflict with the implied freedom of political communication, which had been recognised by the High Court since 1992, and that the restrictions on the speech of public servants were not proportional to the objectives that the measures sought to achieve. Her arguments failed. While most members of the High Court agreed that the Code of Conduct provisions curtailed the implied freedom of political communication, all found that the measures were justified, proportional responses in pursuit of a legitimate objective, compatible with our system of representative and responsible government. 

This article will take issue with the High Court’s decision in this case. Part II will briefly explain the development of the law relating to free speech in the common law. In the past, English law gave limited protection to free speech, favouring strong powers for those in power to stifle and silence dissent and criticism. As confidence in the stability of government grew, the courts grew more confident in protecting free speech. In essence, the law morphed from a Hobbesian view of government to a Lockean view of government, emphasising democratic self-government, and those in Parliament as representatives of the people. On the other hand, governments regularly find public criticism of their activities and policies annoying, and there is a long tradition of punishment and attempted deterrence of criticism that, whilst more subtle than earlier times, continues to be in evidence. Part II will also explain development of the High Court jurisprudence on the freedom of political communication, with particular emphasis to those aspects of the judgments considered most pertinent to the current context of the speech of public servants. 

Part III will consider other contexts in which the value of the importance of public servants’ speech to democracy has been recognised. This includes leading scholars such as Finn, Stiglitz and Sunstein. The views of Finn are particularly interesting, with his background as a leading public law scholar who was appointed to the bench, and had some opportunity to implement his views in one of the (few) decisions on the constitutional freedom of a public servant to air grievances. It also includes a discussion of the jurisprudence of other countries, in particular Canada, where the importance of the speech of public servants to a vibrant democracy has been recognised. Whilst these courts have recognised the legitimate interest of a government in terms of loyalty and objectivity of public servants, they have typically tightly constrained the ability of a government to effectively stop a public servant from speaking out about public affairs. 

Part IV then considers the High Court’s recent Banerji decision concerning the freedom of a public servant to engage in social media discussion about political figures and government policy. It contains criticism of the High Court decision, including the lack of express recognition of the important role that public servants might play in political discussions, and the lack of evidence that the public servant’s personal opinions might realistically, or in fact did, preclude her ability to do the work for which she had responsibility. The recent decision also continues a line of argument featured in other case law, where the courts seem to be accepting that the tone of a communication can be relevant to a decision about its constitutionality. Respectful disagreement will be expressed with this developing line of reasoning. Finally, the article will briefly consider other contexts in which the law protects the freedom of individuals to express their political views, including non-discrimination laws. Coherence in the law is also considered to be important. Possible incoherence arises when the law, on the one hand, recognises the important role whistleblowers, including public servants, can play in bringing alleged wrongdoing to the attention of the public and improving accountability of those in government, and by generally making it unlawful to discriminate against a person on the basis of their political views or activity, but then, on the other, effectively countenancing dismissal of a public servant who publicly expressed her genuinely held views.

'Of Lonely Ghosts': The Primacy Of Responsible Government In Comcare v Banerji' by Patrick Graham in (2019) 30(4) Public Law Review 261-280 comments

The High Court ruled on the compatibility of legislation with the constitutionally implied freedom of political communication (implied freedom) for the third time this year in Comcare v Banerji (Banerji). The case is another example of the significant work that the implied freedom is expected to do in resolving fundamental questions as to the correct balance to be struck between sensitive policy objectives and democratic principles. Banerji concerned a Commonwealth public servant, Michaela Banerji (the respondent), who, in September 2013, had her seven-year employment with the (then) Commonwealth Department of Immigration and Citizenship (the Department) terminated. This followed an investigation commenced in May 2012 into Ms Banerji's use of a Twitter account to publish highly critical comments of the Department, government and opposition immigration policy, politicians and her colleagues. Ms Banerji used a pseudonym when tweeting, but did publish "other identifying information". Section 13 of the Public Service Act 1999 (Cth) (PSA) set out the terms of the Australian Public Service (APS) Code of Conduct with subs (11) stating that APS employees "must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS". Section 13(11) operated alongside s 10(1)(a) of the PSA, which, in turn, defined "APS Values" as including the specification that "the APS is apolitical, performing its functions in an impartial and professional manner". Further, s 15(1) of the PSA established that an APS employee found to have breached the Code of Conduct could be subject to a specified discretionary sanction ranging in severity from termination of employment to a reprimand.