We’ve never had freedom of speech: the day after the Banerji decision

The outcome of the High Court of Australia case of Comcare v Banerji [2019] HCA 23 has been touted as the death knell for freedom of speech in Australia. It’s hard for something to die that was never really alive in the first place, but the decision remains deeply alarming.

The case concerned Michelle Banerji, an employee of the Ombudsman and Human Rights and Equal Opportunity Commission Section, part of the Department of Immigration and Citizenship. Banerji was sacked for tweets sent from an anonymous account, @LaLegale, which were deemed to have failed to uphold the values of the Australian Public Service as well as its integrity and reputation. The High Court found the decision to sack Banerji was ‘reasonable administrative action taken in a reasonable manner in respect of an employee’s employment.’ For this reason, Banerji was prevented from claiming compensation arising from the injury she suffered as a result of this treatment.

It was not in dispute as to whether Banerji’s tweets breached the APS Values and its Code of Conduct. This is because of how the case was run prior to its presentation to the High Court. In the majority judgement, the court found:

It is too late now for the respondent to be permitted to contend for the first time, as it were on ultimate appeal, that the penalty imposed on her did not accord to the nature and gravity of her contraventions of [the relevant APS Values and Code of Conduct] or her personal circumstances. She must be taken to have accepted that they did and, consequently, that the penalty imposed was in accordance with those provisions and so within the limits set by the implied freedom.

This is unfortunate, as it would have been a good argument to pursue. The @LaLegale account sent more than nine thousand tweets, mostly from Banerji’s own device and mostly out of hours. I do not claim to have reviewed them all but concerning the example circulated in the media reproduced below, one could argue whether or not an accurate observation about Australia’s immigration policies actually fails to uphold the integrity and good reputation of the APS.




From a legal perspective, there may be ways to advocate that the significance of this tweet or similar such tweets could be a matter of degree and context, yet the question remained largely unexamined by the High Court. Subsequent courts may be required to make decisions about whether these kinds of communications fall on the wrong side of the line. But the chill factor has probably already set in. Public servants would be unwise to wager their careers on receiving a hearing from a liberal or sympathetic court.

The problem for Banerji was that the implied freedom of political communication in the Constitution is of little assistance. The High Court rejected the way in which the dispute was characterised by the Administrative Appeals Tribunal, whose decision was the subject of the appeal (and that Banerji was tasked with defending). The Tribunal characterised the question as:

whether or not the termination of the [respondent’s] employment with the Commonwealth falls outside the exclusion in s 5A(1) of the Act, having regard to the implied freedom of political communication.

The problem with this framing is that it suggests that Australian citizens have a personal right to freedom of speech, which they do not. The implied freedom of political communication is a limit on executive and legislative power, and it is not a very significant one. It extends only as far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution. Otherwise, the legislative and executive branches of government are able to place all sorts of burdens on speech, provided they are for a legitimate purpose and appropriately adapted to that purpose. In other words, the implied freedom is not comparable to rights in many other jurisdictions, perhaps most famously the first amendment to the United States Constitution.

The upshot is that Banerji’s legal team sought to defend a characterisation of the problem that the High Court ultimately rejected. The court instead looked, quite narrowly, at whether the burdens imposed by the APS Values and Code of Conduct were in violation of the implied freedom. Given the purpose of these burdens was to regulate a public service as a component of responsible government, it was always quite unlikely that such burdens would be considered unconstitutional.

This is a pretty technical explanation of an outcome that many people rightly feel deeply troubled by. An impartial public service is important to a functional form of government, but it is not something we actually have. The APS Values and Code of Conduct instead are directed at cultivating a culture of compliance and discipline for public servants.

Not all public servants are created equal. There is one rule for senior executives, who can often be selected based on their perceived political leanings, and another rule for everyone else. Senior public servants face few consequences for their political bias, while the people who answer to them must live under a perpetual sword of Damocles in which minor acts can have the most serious consequences. If we actually wanted a public service capable of delivering frank and fearless advice, we need to reverse this position.

At the very least, we would require stronger protections for whistleblowers who seek to expose wrongdoing. As Asher Wolf rightly points out, this decision confines public servants to acting as either a silent witness or a whistleblower. In a context in which whistleblowers routinely face adverse consequences for speaking out, the effect of the APS Values and Code of Conduct is to condemn public servants to silence.

This is, therefore, a class issue. This is true for the problematic implications of this decision, but also for any proposals which might be put forward to fix them. The law as it currently is will not save anyone. As articulated over at The Banner Bright, we need industrial organising to push back against the oppressive nature of the APS Values and Code of Conduct.

This is the moment to do so. More than ever, the government appears to consider itself above scrutiny, dithering on the establishment of a Federal anti-corruption body in a context in which the conduct of its own ministers is underscoring its urgent necessity. Such self-serving politics is clearly a barrier to a well-informed public, and we are more dependent than ever on those who possess information sharing what they know in the public interest.

This could be the basis for a broader movement in defence of worker rights. The other, related problem, is that employment law generally permits ever-expanding rights for the employer over the employee, of which control over our social media activity is but one aspect.

Participation in public life and debate is made easier than ever by technology. Social media may not always be a good place to be, but it is undeniably a space in which politics takes place. How we engage ought to be a personal right to decide for ourselves, rather than ceding this power to our employers and privatising the regulation of public debate. Allowing employers to cut off workers from those public spaces undermines social democracy. For that reason, it is important for those who support workplace rights to both defend Angela Williamson and refrain from cheering the decision about Israel Falou. The traditional libertarian free speech warriors who have remained silent on Banerji’s plight always prove themselves inconsistent on these questions. Our job is not to replicate this hypocrisy.

This moment also presents an opportunity to link workers’ rights to human rights. The most obvious shortcoming of our legal system exposed by the Banerji decision is the absence of human rights protections. As the only Western democracy without a bill of rights, Australia stands out legally from similar jurisdictions, and not in a good way. This is not just an obscure theoretical problem, or some kind of lofty legal idealism that lacks concrete meaning. It has real-world implications for the two million employees who work in the APS, for starters. Our legal system does accord with public expectations of fairness or justice, and the introduction of a bill of rights would be an important step towards rectifying this.


Lizzie O'Shea

Lizzie O’Shea is a lawyer. Her book Future Histories (Verso 2019) is about the politics and history of technology.

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  1. I just find it boggling that people on the so-called Left are so slow to realise how quickly and aggressively players on the right are driving once “democratic” societies into fascist states that would make the Stasi proud …

    1. But it isn’t just people on the Right who are pushing surveillance and control. There is a strong Left contingent who are in favour of censorship of social media, denial of visas for speakers of whom they disapprove, and so on.

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