The Right to Set Your Hair on Fire

Earlier this week, the High Court made a decision on the case of Michaela Banerji. In an unanimous decision, the High Court:

upheld a decision to sack a public servant, Michaela Banerji, for anonymous social media posts that criticised the government’s immigration policy.

Contributing to the Spectator Australia, Satya Marar (Director of Policy at the Australian Taxpayers’ Alliance) writes that this:

High Court’s high-stakes ruling threatens liberty

There are some valid arguments why this decision is dangerous. However, Mr Marar does not present them. Instead, he makes a number of incoherent and sophomoric arguments. For example Mr Marar writes that the High Court found that:

… the Department of Immigration and Border Protection, had not violated the constitutionally-protected implied freedom of political communication of one of its employees by firing her for tweets which were critical of the government.

What the hell is a constitutionally protected implied freedom? If it’s implied and not in the constitution how can it be constitutionally protected? Is it the vibe maybe?

Mr Marar also quotes Banerji’s lawyer, Allan Anforth and argues:

In other words, this case is not simply a clarification of the limits which apply to speech amongst public servants, but has wide-reaching and dire implications for free speech and civil liberties that touch on all of us.

Does it? Really? Of course Banerji’s lawyer would say that. But that does not make it a fact. Might the details of the employment Banerji’s agreement be relevant perhaps.

But then the most puerile and ignorant comment from Mr Marar:

However, public servants ultimately exist to serve us – the people.

Wrong. Wrong. Wrong. Public servants don’t exist to serve the people (typo corrected thanks Baa Humbug). They exist to advise and implement the policies of the elected government. If they don’t like or agree with the policies of the elected government, they should consider a different career. Public servants don’t have a special mandate to implement policies that they seem to think are in the interests of the people as determined by individual public servants.

Such a statement might be acceptable in a high school essay. Not from a Director of Policy.

There are serious issues for consideration flowing from this decision. Lighting one’s hair on fire won’t help this discussion.

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55 Responses to The Right to Set Your Hair on Fire

  1. stackja

    I don’t believe public servants have the right to publicly criticise government policy.

  2. Frank Walker from National Tiles

    What the hell is a constitutionally protected implied freedom? If it’s implied and not in the constitution how can it be constitutionally protected? Is it the vibe maybe?

    Come on, dude. This is like saying there is no PM of the Commonwealth of Australia.

  3. Buccaneer

    Is Mr Marar setting out an argument that public servants should be elected by the people too?

  4. Frank Walker from National Tiles

    In other words, this case is not simply a clarification of the limits which apply to speech amongst public servants, but has wide-reaching and dire implications for free speech and civil liberties that touch on all of us.

    Probably not, read para 28 of the judgment as other bloggie cohenite has commented on before.

  5. John64

    Sir Humphrey: “Our job is to implement government policy.”

    Bernard: “Even if we think it is wrong?”

    Sir Humphrey: “Well, almost all government policy is wrong – but frightfully well carried out.”

  6. I_am_not_a_robot

    There are some valid arguments why this decision is dangerous …

    I’m interested to read those arguments.

  7. Tezza

    “There are some valid arguments why this decision is dangerous.”

    Really? Let’s hear them then. I’d call this decision blindingly obvious.

  8. Typo alert.

    Wrong. Wrong. Wrong. Public servants do exist to serve the people. They exist to advise and implement the policies of the elected government.

    do/don’t, whatever.

  9. FelixKruell

    What the hell is a constitutionally protected implied freedom? If it’s implied and not in the constitution how can it be constitutionally protected? Is it the vibe maybe?

    Rail against this concept all you like, but it’s a concept the High Court came up with, not Mr Marar:

    “Implied rights are the political and civil freedoms that necessarily underlie the actual words of the constitution but are not themselves expressly stated directly in the constitution. … Chief amongst these is an implied right to freedom of communication on political matters.”

    https://en.wikipedia.org/wiki/Australian_constitutional_law

  10. Tezza

    The public servant was employed to administer immigration policy,
    The High Court notes “The Respondent had been employed in the Australian Public Service (“APS”) in the Department since May 2006. Between then and 19 July 2012 she posted over 9000 tweets on Twitter under the Twitter handle “LaLegale”. That Twitter handle did not state her name but did include other identifying information.” She was critical of the Department, its other employees, policies and administration, and Government and Opposition immigration policies and members of Parliament.

  11. FelixKruell

    Tezza and Valid Robot:

    “There are some valid arguments why this decision is dangerous.”

    The most valid one in my view is that it treats electronic communication differently to other communication.

    This decision effectively allows public servants to be prevented from electronically sharing their private views in a way that would be permissible in person. For example, a public servant in the Department of Education can attend a Liberal party meeting and demand we lower income taxes. They can even hand out how to vote cards for the Liberals if they like, telling people they want lower taxes, But if they make the same demands via twitter, they can be fired.

  12. Frank Walker from National Tiles

    The most valid one in my view is that it treats electronic communication differently to other communication.

    Why shouldn’t they be, at least in the specific circumstances you mention?

  13. Des Deskperson

    As I have posted before, the High Court decisions simply confirms, at least legally, the status quo concerning the right and responsibilities of APS employees who wish to participate in the political process as private citizens, which has beee in place since federation.

    As far as I can see, no APS employee has lost any of his/her political freedoms as a result of the decision, although there is, perhaps, a danger that zealous APS managers might use the decision to tighten the screws.

    Currently, the appropriateness of any political comment of activity by an APS employee, where the issue arises at all, is judged on a case by case basis, taking into account factors such as the closeness of the employee’s comments/activities comments to the work the employee is actually engaged in and the level of that employee – private political comment/activity by a DEP SEC is a bit more fraught that that of an APS 4.

    In my experience, these issues do not arise frequently and when they do, and there are reasonable people on both sides, they can usually be resolved informally.

    I’m not sure that laments about the High Court failing to define more precisely what is and what isn’t acceptable political behaviour and calls for more formal protections for APS employees are necessarily helpful

  14. Ellen

    “If (public servants) on’t like or agree with the policies of the elected government, they should consider a different career.”

    So we end up with a public service whose members all agree with the policies of the elected government? Will they then only provide advice to the government that supports the government policies? What if they have good data that suggests the policies may have negative side-effects? Should they keep that from the government? What happens when the government changes? Do all the staff who agreed with the previous government’s polices now leave to be replaced by people who support the new government’s policies? Of course that tends to happen now: department heads are replaced when the government changes; then there can be a domino effect down the line as middle managers seen as ‘too close’ to the dumped director are removed. This can be done quite legally: have a restructure, abolish and recreate all positions, require the previous the previous holder to reapply, then appoint someone ‘more qualified’. The staff are well aware of this, and whatever their views on policy, tend to second-guess what the new bosses (Ministers, Department heads) want. This also has a knock-on effect down the line. ‘My job is to keep the Director happy. That report’s too negative to give to him’. ‘We have to give the Minister what he wants’. (Actual quotes).

    Putting up with a few anonymous negative tweets may be a small price to pay to keep the public service from just joining the Minister’s political advisors.

  15. jo

    Choosing Maraar was a fundamental mistake. Never choose representation that thinks the same as yourself i.e. feelz. He wont care either way as long as he’s paid. Can’t imagine doing it pro-bono.

  16. FelixKruell

    Frank:

    Why shouldn’t they be, at least in the specific circumstances you mention?

    Because I struggle to see why other’s perception of you as an apolitical public servant is harmed by a twitter comment about government policy (outside our area), but not harmed by handing out actual how to vote cards for a specific political party.

  17. Frank Walker from National Tiles

    Okay then, why are they the same?

    Back in the 1980s, if an APS took out ads on TV or in major newspapers semi-anonymously against policy, would/should have they get/gotten fired?

    The fact of the matter is the law lags technology.

  18. Breaching the Public Service Code of Conduct has always been a cause for termination. The other aspect is that as a public servant in that particular department, she was ostensibly making (bad) public relations comments about her department, something that she had no right to do.

    The case has implications for 2 million federal, state and local public servants, as the court declined to use the constitutional implied freedom of communication to rule that the sacking was unreasonable.

    It has no implications whatsoever. Every public servant would have know that comments such as hers would be a breach.

    However, public servants ultimately exist to serve us – the people. Which is why this ruling sets a worrying precedent. Patriotism does not just permit the criticism of the government. It sometimes requires it.

    Working for the public service does not imply that individuals can publicly do and say what they will about their department, or government in general. What next, public servants refusing to do their assigned jobs because they disagree with some aspect and the law will allow them to do so?

    If you do all of that, then expect to be sacked.

  19. Beachcomber

    The social media comments were anonymous which presumably means Ms Banerjee was not identified as an employee of the Department of Immigration and Border Protection.

    Was Ms Banerjee was making these 9,000 social media comments during work hours? If they were done outside of work on her time and appliance etc., this ruling does seem to be a threat to free speech.

  20. Beachcomber

    Also, was Ms Banerjee using Departmental information or insights from her employment to fuel her tweets for a campaign against the Department’s policy? That would also be grounds for dismissal.

  21. Percy Popinjay

    This decision effectively allows public servants to be prevented from electronically sharing their private views

    Beachcomber – it was noted during the case that “a proportion” of Banerjee’s “electronically shared private views” were sent during “work hours”. Interesting that it wasn’t identified what proportion of those 9,000 twats were sent during the creature’s work hours.

    I’d wager it was a significant proportion, most likely around 91.3%.

    For that reason alone, her dismissal was justified.

  22. notafan

    The court said some/few tweets were made during work.

    As for the inside information, a supervisor figured out it was her so one have to assume tweets suggested intimate knowledge of internal processes and policies.

  23. notafan

    And although not directly on point, I am reminded that a person cannot stand for parliament if they hold an office of profit under the crown so the Constitution does has something to say about politics and employment by the Commonwealth

  24. Frank Walker from National Tiles

    The case has implications for 2 million federal, state and local public servants

    2 million?

    We’re so fvcked.

  25. Des Deskperson

    ‘Was Ms Banerjee was making these 9,000 social media comments during work hours? If they were done outside of work on her time and appliance etc., this ruling does seem to be a threat to free speech’

    As other commentators have noted, there were some tweets made during work.

    These days almost everyone APS employe would male some use or other of social media at work The appropriateness of this is something that agencies have yet to grapple with.

    It would be another issue if she was using official resources. A single incident of misuse of Commonwealth IT resources is a sackable offence in some agencies, I’ve seen no evidence the Banerji was doing this.

    As I’ve commented on other posts, the APS Code of Conduct does cover aspects of APS employee behaviour outside of work, in the words the Code, ‘at all times’. Specifically:

    An APS employee must at all times behave in a way that upholds:
    (a) the APS Values and APS Employment Principles; and
    (b) the integrity and good reputation of the employee’s Agency and the APS.’

    This requirement is arguably vague and even unreasonable, but Ms Banerji was obliged to comply with it. There’s the issue of her anonymity , which I though was a reasonable argument, but once she was outed – almost inevitable. given her Stakhanovite, obsessive and reckless tweeting – all bets were off.

  26. poorly chosen or chosen poorly

    I’m in total agreement with Frank.
    2 Million public servants?

    We’re so Fvcked

  27. johanna

    Public servants are perfectly entitled to be an active member of a political party, hand out HTVs for the Opposition party, write letters to the editor and so on. That has always been the case.

    What they are not allowed to do is campaign against their workplace or their Minister’s policies. The reasons for this are pretty obvious. If they really object to what is being implemented in their workplace, they should either seek a transfer or resign.

    If they transfer to another portfolio, the scope for opposing Government policy applying to the former workplace is significantly increased, but not unlimited. If they resign, they can of course do as they please within the law.

    It’s not complicated, and has been well understood by public servants for decades. In the case under discussion, Bannerjee was covertly and aggressively campaigning against her Minister and Department. The fact that it was covert is hardly a mitigating circumstance, indeed, arguably it made the offence worse. It was disloyal and dishonest. She had to go.

  28. Leo G

    Wrong. Wrong. Wrong. Public servants don’t exist to serve the people (typo corrected thanks Baa Humbug). They exist to advise and implement the policies of the elected government.

    In practice though, a partisan toady usually follows the self-serving example of its Minister.

  29. JC

    Fire them and confiscate all their money and wealth. That way we don’t worry about any implied free speech issue. At the very least they should not be allowed to vote. The audacity of that bint posting junk while raking in our taxes. The nerve.

  30. JC

    As an aside. This would have to be the first firing for cause in 50 years in the APS.

  31. Frank Walker from National Tiles

    I reckon what would make the media really fawn for this woman would be a prior career in the Comm. Dept. of Health, where she could have been praised as” (she) worked her guts out in health!”

    Usually, I think the quack therapies of Dr Samuel H Kellog ought to be a private matter, but this stock in trade line works well with leftist footsoldiers, your typical nonsense rhetoric to push the career of one ALP backbencher over the other.

  32. @Frank Walker from National Tiles

    Not 2 million. 1.987 million as at June 2018. See https://www.abs.gov.au/ausstats/[email protected]/mf/6248.0.55.002/

    4 times the population of Tasmania.
    2 times the population of South Australia.
    More than the population of Perth.

    Oh and the 1.987 does not count off balance sheet stuff like GBEs – the energy sector in QLD, NBN, ABC, SBS. Does not count diplomatic staff either.

    Almost certain that it does not count consultants either.

  33. I_am_not_a_robot

    Ms Banerji was sacked for breaching the APS Code of Conduct that specifically advises:

    “… anyone who posts material online, particularly on social media websites, should assume that, at some point, his or her identity and the nature of his or her employment will be revealed …”.

    #3127220: Sending out 9,000 tweets is comparable to addressing a massive political rally.

  34. Louis

    ‘Implied’ when used in relation to the Australian constitution means completely made-up by judges.

    The profession and Judges like to pretend that we didn’t have a High Court carrying out judicial activism from the 1980s till recently. There is all kinds of twisted logic and cognitive dissonance employed by academics and the profession to try and pretend that judges were only ‘discovering’ the law as it really is based on the text of the law and judicial precedent.

    There is the rule of law and there is the whim of the judiciary or government officials. The two systems are not able to coexist.

  35. FelixKruell

    Frank:

    Back in the 1980s, if an APS took out ads on TV or in major newspapers semi-anonymously against policy, would/should have they get/gotten fired?

    In my view no, assuming it was anonymous.

    If it’s not anonymous, then the question is a lot harder to answer.

  36. @Louis

    TAFKAS’ point on the implied constitutional right line was a rhetorical one not a legal one.

    TAFKAS subscribes to the US version of rights – that we have and are born with certain rights, including speech, life, liberty, property and the pursuit of happiness, and the role of the government is to PROTECT these rights. This in contrast to the European version rights where our rights come (and go) from the King/Queen/Tsar/Government.

    For something to be constitutionally protected it should be, you know like, be in the constitution. That it does not appear in the constitution does not mean that TAFKAS does not have the right to speech – because that right comes not from the Government but rather TAFKAS was endowed with that right by his creator.

    The issue is not about the existence of the right to free speech but whether our government protects it. Which it frequently does not and frequently itself ignores.

    Notwithstanding, this case was not about free speech as evidenced by many comments to this post.

  37. Frank Walker from National Tiles

    ‘Implied’ when used in relation to the Australian constitution means completely made-up by judges.

    No, it doesn’t.

    The Interpretation Act allows for extrinsic material. Extrinsic material with regards to the constitution would be the Federation debates for example or concepts of the separation of powers in prior American and British case law (as either persuasive or previously as authoritative arguments). The constitution does not rely on the IA for interpretation; the Court has original jurisdiction (but arguably it regulates interpretation given the Constitution was an Imperial Act). This might mean “it makes it up as it goes along” but it holds sovereignty – at least in the judicial sense in Australia.

  38. Frank Walker from National Tiles

    For something to be constitutionally protected it should be, you know like, be in the constitution.

    True, but now a lot of your rights exist because of the abuse of the external affairs power, vis a vis the UN DHR, ICCPR, ICERD, etc.

  39. FelixKruell

    Johanna:

    What they are not allowed to do is campaign against their workplace or their Minister’s policies. The reasons for this are pretty obvious. If they really object to what is being implemented in their workplace, they should either seek a transfer or resign.

    I agree – but as I understand it, the code of conduct (and the ramifications of this decision) aren’t limited to these circumstances. They extend to social media comments about any government policies, whether related to the public servant’s department or not.

  40. Rococo Liberal

    If you worked for coca cola and secretly used your knowledge of the organisation to anonymously campaign against it on social media, do you really think you shouldn’t get the sack?
    This woman used her knowledge to try and change her bosses policy by publicly campaigning against it. Anyone who can’t see why this is a sacking offence really hasn’t grasped the fact that the duty of a public servant is to assist in the carrying out of policy, not to undermine that policy.
    Her tweets were not merely speech, but actions. That is why they do not merit any protection under the implied freedom of political speech adumbrated by the Court in past cases.

  41. @Frank

    True, but now a lot of your rights exist because of the abuse of the external affairs power, vis a vis the UN DHR, ICCPR, ICERD, etc.

    TAFKAS does not know to which rights you refer, but TAFKAS had rights to things like (but not limited to) speech, self defence, self expression, conscience, life, liberty, property and the pursuit of happiness before, during and after these entities. They were not given to TAFKAS by these bodies. Whether TAFKAS’ rights are protected and secured by the government because of these bodies or otherwise is a separate matter.

    TAFKAS holds these truths to be self-evident.

  42. Des Deskperson

    ‘I agree – but as I understand it, the code of conduct (and the ramifications of this decision) aren’t limited to these circumstances. They extend to social media comments about any government policies, whether related to the public servant’s department or not.’

    The Code of Conduct itself – s . 13 of the Public Service Act 1999 – doesn’t deal specifically with social media.

    The Australian Public Service Commission has issued guidelines applying the principles set out in the Code of Conduct covering private political activity by APS employees – principles that, as Johanna has pointed out, have been in place for decades – to the use of social media.

    As I’ve stated before, these principles are, basically, that APS employees should not engage in political activity that could compromise perceptions of their ability to carry out their particular duties in an independent and apolitical manner. These principles have to be applied on a case by vase basis, and would depend, among other things, on the range of their ‘particular duties’.

    I haven’t read the latest guidelines of use of social media – which will have now to be updated anyway. I don’t know if these guidelines put an unreasonably restrictive interpretation on the Code of Conduct principles , but I’ld be extremely surprised if they involved a blanket ban on any comment on government policies.

    BTW, loved your performance, Felix, in front of the German Army Medical Board.

  43. notafan

    The case is linked to one of the government’s most prolific official tweeters, Immigration Department spokesman Sandi Logan, who heads the communications team in which Ms Banerji worked.

    Ms Banerji had accused Mr Logan of bullying her, and argued the department’s decision to discipline her over her Twitter comments was a retaliation against her complaint.

    a little more background

  44. FelixKruell

    Des:

    As I’ve stated before, these principles are, basically, that APS employees should not engage in political activity that could compromise perceptions of their ability to carry out their particular duties in an independent and apolitical manner. These principles have to be applied on a case by vase basis, and would depend, among other things, on the range of their ‘particular duties’.

    There seems an awful lot of discretion (and therefore uncertainty) involved in working out whether certain action will cause a public servant to breach them. This particular case was (in my view) very straightforward – the volume of posts/attacks, in the same area she works in, using some information that was confidential, was a clear breach. But someone commenting here for example, on a topic outside their area? Do they take the risk of breaching it, knowing they could be fired?

    I employ my German Army Medical Board approach every time I’m asked to work for the public service.

  45. Pyrmonter

    @ TAFKAS

    Play the ball, not the man. Satya is one of our sounder writers.

    You’re right that constitutional ‘implied freedoms’ are tricky, but it’s hard to say they’re complete nonsense when the court has (in my view, wrongly, but let’s park that for a second) upheld them for 25 years.

  46. Frank Walker from National Tiles

    Pyrmonter

    What is your opinion of what I wrote at 2:33 PM today?

    Some of the implied rights have to be there, right?

  47. @Pyrmonter

    Play the ball, not the man. Satya is one of our sounder writers.

    Based on a sample of 1, this 1, if by “one of our sounder writers” you mean he has good spelling and penmanship, then sure. If based on the arguments presented then bzzzzzz, thank you for playing.

    TAFKAS is an equal opportunity critic. He criticises the arguments and not the arguers.

    There were also other criticisms of Satya’s piece than the implied freedoms bit. Criticisms well worth ventilating ITHO.

  48. Squirrel

    Peter Dutton’s comment about the HC decision sending a message to public servants who try to be sneaky and “cute” (in one sense of that word) sums it up very nicely – particularly re the Canberra component of the federal PS, which is basically enemy-occupied territory for LNP governments (last time Canberra elected a Liberal MHR was for few months in the mid-90s).

  49. Tel

    Working for the public service does not imply that individuals can publicly do and say what they will about their department, or government in general. What next, public servants refusing to do their assigned jobs because they disagree with some aspect and the law will allow them to do so?

    Can you explain how those two sentences connect to one another in any way, shape or form?

    No one disputes that WHILE ON THE JOB employees do the jobs assigned to them. Is this difficult? The question is whether that employee is always considered on the job and therefore their entire private life is removed from them … even during the hours that the employer is not paying for.

  50. notafan

    I don’t think public servants get their entire private life removed from them.

    They have a code of conduct, and firing off snarky replies to your supervisor when she put out official tweets on behalf of the department is not doubt a line that should not have been crossed.

  51. Tel

    Here what I think the High Court got wrong: the government is a special employer because they are in the most monopolistic of all monopoly positions. If political speech is necessary to have a functioning democratic society, then ANY method of erasing that political speech must necessarily be working against democracy itself. Trying to say, “Oh you can’t do it with legislation, but don’t worry we can get this done by other means,” is plain and simple an end-run around the entire concept of limited government.

    And for what it’s worth … this does appear crafted to set a precedent and be contagious into the private economy. All employers will demand the right to track their employees and know everything they say or do, just in case of an anonymous online post that fails to adequately convey corporate brand fervor.

  52. Tel

    By the way … this precedent would apply to the entire ABC. They are public servants after all, paid out of public money, to do a public job. Therefore if … just for example … Peter Dutton sees someone on the ABC calling him “racist” he can reach for the phone and have that person sacked.

    If not, then why would that be any different?

    What’s more, if any ABC staff even in their spare time make an anti-government comment in any way, same rule should apply … no political speech for you, sacked! The High Court appears to support this, might as well make the most of it.

  53. Beachcomber

    ……….. firing off snarky replies to your supervisor when she put out official tweets on behalf of the department is not doubt a line that should not have been crossed.

    The more Ms Banerji’s behaviour is considered in context, the more it seems reasonable to have sacked her.

  54. Des Deskperson

    ‘There seems an awful lot of discretion (and therefore uncertainty) involved in working out whether certain action will cause a public servant to breach them. ‘

    Fenix, in my experience, for what it’s worth, its actually very hard to develop strict rules and directions to cover every aspect that might arise in a public sector issue or event involving ethnic choices. All you carnally cdo is to ensure that manages and staff understand the overall principles, have access to guidelines and was studies and behave with intelligence and common sense.

    ‘But someone commenting here for example, on a topic outside their area? Do they take the risk of breaching it, knowing they could be fired?’

    Again it depends. For a junior employee, it would probably not be an issue. For a Division Head or a DEP SEC with a a wide range of responsibilities across and agency, a high profile and a responsibility to model ethical behaviour, it could be more serious. It’s important to remember that issue like these are normally resolved informally through discussion, but even if the matter went to a formal Code of Conduct process, it’s unlikely the employee would be sacked – there are a range of sanctions available – counselling, reprimand, transfer – and only an obsessive reckless and intransigent offender would be likely to face termination.

  55. Des Deskperson

    err, case studies

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