7 August 2019

The High Court today upheld the sacking of Michaela Banerji, an Immigration Department employee who was fired for tweeting criticism of the department from an anonymous account. While this outcome is not surprising — the Court was always going to give the government a great deal of leeway in how it regulates the public service — the detail of the judges’ reasoning is nevertheless revealing. The majority held that the Government and its public service is entitled to a “good reputation”, even where that reputation can only be maintained by the suppression of legitimate criticism! Banerji is another reminder that the Constitution was designed to create a free trade zone between the States, and can not be relied upon for any significant protection of substantive rights. But it’s important to note that this decision does not mandate harsh restrictions on public service freedom of speech — it just pushes the issue back to the Executive branch. The CPSU’s Nadine Flood rightly complained that “people working in commonwealth agencies should be allowed normal rights as citizens rather than facing Orwellian censorship because of where they work” — the APS Code of Conduct needs to be changed, but that must be achieved through a change of government and union action.