The High Court’s high-stakes ruling threatens liberty
Conservatives and left-wingers alike should oppose today’s High Court decision which found that the Australian Public Service, specifically 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.
Michaela Banerji had tweeted from an anonymous account, mostly outside office hours. The tweets in question include one critical of the Australian government’s history in deciding to go to war in Iraq on the basis of flimsy and unsubstantiated evidence. As noted by Banerji’s lawyer, Allan Anforth:
The implications don’t stop at the boundary of public servants … the implication is that for any employee-employer relationship, if the employee is critical of the employer’s position on some politically relevant social issue, they can be sacked.
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.
The High Court found that the specific contractual provisions which constrain the speech of APS employees, namely the one which requires employees to “take reasonable steps to avoid any conflict of interest (real or apparent) in connection with the employee’s APS employment” and that an employee must “uphold the integrity and good reputation of the employee’s agency and the APS”, do not go too far as they are in keeping with ensuring an apolitical public service.
At first glance, this might seem reasonable. After all, how can an employer be forced to maintain the employment of a worker who publicly slags off the company or person that they work for? An openly partisan public service could undermine the ability of departments to do their job due to conflicts with the duly elected government of the day.
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.
A well-functioning public service that acts neutrally in the performance of its duties does not require that its employees be divorced from maintaining or expressing their own opinions. This is especially true in a world where the ‘career public servant’ is less relevant than ever and there is a significant rate of transition back and forth between the public and private sectors over an employee’s career. Expressing contrary views to a government or politician does not necessarily mean that the worker’s ability to do their job is compromised. Public servants have just as much a right to engage with the public discourse that goes on in our liberal democracy as anyone else and have just as much of a stake in it.
If we can’t accept that, then what is the inevitable conclusion? Should a bank that sponsors Mardi Gras be able to let an employee go for posting a biblical quote on their private social media account outside of work? What about employees who express political views that are contrary to those strongly held by their boss? Or of doctors working for a Victorian public hospital who oppose abortion or euthanasia? What about someone who simply disagrees with or questions the “corporate social responsibility” virtue signalling of their company on issues which have nothing to do with their shareholders’ interests?
The end result is a culture of fear and silence that will only heighten social polarisation by discouraging people with different views from engaging with each other and understanding each other’s positions. This is a significant loss for our democracy.
In the past year alone, we’ve seen public service whistle-blowers like Richard Boyle who exposed the abuse of innocent taxpayers by the Australian Tax Office’s unethical practices hauled through the court system and threatened with lengthy jail terms. How can we even talk about protecting those who put the public interest above that of the government or government agency if they can’t even express their own opinions?
A world where employers exercise draconian controls over their employee’s free expression outside of work is poorer both in terms of political discourse as well as trust. Some might argue that Michaela Banerji knew what she was signing up for when she accepted the terms of her employment with the APS. But we should trust that our government will uphold the basic principle of free speech and political communication above and beyond the interests of its bureaucracy who are served by a public service culture of silence and conformity. The people who are not served by this reality are the public who those bureaucrats are meant to serve.
This article appeared in The Spectator on 7 August 2019.