The public service code of conduct
On Wednesday in Canberra, more than 100 spectators, 13 barristers, 11 instructing lawyers and the seven justices of the High Court of Australia filled courtroom 1 close to capacity. All were convened for oral arguments in one of the most important free speech cases to come before the High Court this decade. As the crowd waited for proceedings to start, one observer mused about the potential fallout posed for her and her colleagues. “I might have to delete Twitter,” she said, laughing.
Papers were shuffled and appearances were announced before Ron Merkel, QC, a former Federal Court judge now back at the Victorian Bar, rose to face the bench. “If the court pleases,” he murmured.
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.
Banerji’s employment was eventually terminated, although not before she had tried and failed to get an injunction from the Federal Circuit Court on the basis that disciplinary action contravened her free speech rights.
As Merkel made opening arguments for Banerji, portraits of Australia’s original High Court judges – Sir Samuel Griffith, Sir Edmund Barton and Richard O’Connor – stared down from the courtroom walls, an apt audience. Restrictions on the political engagement of government employees in Australia are as old as the High Court itself.
Following the passage of the first federal public service legislation in 1902, regulations were introduced demanding public servants not “discuss or in any way promote political movements”. Even this was not novel, though: British civil servants have experienced an “obligation of silence” since the early 1800s and in colonial Victoria officials were forbidden from “political partisanship” in 1856.
Until recently, these laws have received little scrutiny. It has been taken as essential that Australia’s Westminster/Whitehall-style constitutional democracy requires an impartial and apolitical public service. Community confidence in the Australian Public Service is underpinned by its separation from partisan politicking; regression to a politicised bureaucracy would encourage patronage. As Donaghue told the High Court on Wednesday, Australia’s constitution presumes that the “public service is to be an apolitical institution”.
But as Australia’s democracy has matured, so have attitudes towards the disenfranchisement of public servants from political life. In 1961, when the head of a government scientific agency was suspended after publicly commenting on a draft law that affected his agency, one newspaper attacked the decision as an “example of unwarranted authoritarianism”. In the 1970s, some of these restrictions were liberalised to give public servants greater freedom.
And although a private-sector employee could easily be terminated for openly criticising their company, the government is no ordinary employer. In time, it began to be accepted that government employees are entitled to some degree of political participation and that there is a societal interest in their inclusion in the public discourse.
Merkel pointed to these developments on Thursday in support of Banerji’s case. As he had set out in written submissions, the federal government has “no legitimate interest in cleansing APS employees of political opinion”. The current restrictions went beyond what was constitutionally permissible, he argued.
Underlying this is a decision by the High Court in the 1990s, which located an implied free speech protection in the constitution. In 2003, the Federal Court even invalidated one limitation of political expression on these grounds, despite it having been – in the words of Justice Paul Finn – “a threatening presence for Commonwealth public servants for over 100 years”.
But with the advent of social media, the federal government has doubled down. The Department of Prime Minister and Cabinet made headlines in 2014 for requiring staff to “dob in” colleagues posting political criticism, while the Australian Public Service Commission has indicated that even liking an anti-government post on social media could breach the code of conduct that binds all federal public servants. In 2015, a Centrelink employee was fired for criticising policy online. However, he later won an unfair dismissal case in the Fair Work Commission.
Comcare v Banerji is the first time Australia’s highest court has contemplated these issues. 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.
With a key provision of the public service’s code of conduct under threat, the government acted swiftly – bypassing the Federal Court and removing the appeal straight to the High Court. And so, seven years since one of Banerji’s colleagues complained about her tweeting, the social media habits of a middle-aged public servant have come before the most powerful judges in Australia.
A core issue at dispute in the High Court is the breadth of the code of conduct, which requires federal public servants to “at all times” uphold numerous “APS Values” – one of which is impartiality. On the surface, this provision would have an expansive scope and affect significant intrusion into the private lives of government employees. The law, as written, is almost unqualified.
In an attempt to avoid constitutional scrutiny, the federal government has suggested a restrained interpretation of the provision. In his written submissions, the solicitor-general sought to read the provision down: “ ‘At all times’ ... does not mean ‘always and under any circumstances’.”
This continued on Wednesday, with the government arguing that a range of factors guided the code of conduct’s application, including seniority, whether political comment was directed at an employee’s own agency or another agency, when and where the comment was made and the communication’s tenor (“is it personal criticism of a combative or vitriolic kind at one end of the spectrum, or academic or informative policy debate at the other?” asked Donaghue).
Such an approach sounds eminently sensible, except for an absence of any legislative grounding. “Do the guidelines have a statutory basis?” asked Justice Stephen Gageler. “No,” Donaghue conceded. Without regulations to this effect, what the government says and what it has empowered itself to do are entirely different things.
Comcare v Banerji continued on Thursday, before a slightly reduced crowd. The High Court’s judgement is not expected until the second half of the year. It will bring to an end the sorry saga of an Immigration employee who, in rather harsh terms, took issue on Twitter with the government’s treatment of asylum seekers. But it may be just the beginning of this topic’s prominence.
The code of conduct regulates a broad range of public servant conduct, not just speech. The breadth of “at all times” has also been at issue, for example, in a case concerning a Tax Office official convicted of overseas child sex abuse. If the High Court indicates the provision is unconstitutional, the government will be forced to do a rapid repair job. On the other hand, if the bench rejects Banerji’s claim, these issues could be relitigated in the future when a case arises closer to whatever line the High Court draws between legitimate regulation and draconian silencing of public servants. Social media is now part of everyday life and this controversy is not going away.
In the late 1800s, an American judge quipped that a member of the police “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman”. Subsequent jurisprudence in the United States, Canada, Britain, Europe and elsewhere has attempted to find a more nuanced balance between the individual rights of government employees and the public interest in an apolitical bureaucracy. Finally, it is the High Court of Australia’s turn.
This article was first published in the print edition of The Saturday Paper on Mar 23, 2019 as "Free tweets". Subscribe here.