The decision is Banerji v Department of Immigration and it raises more questions than it answers. Being a Federal Circuit Court decision, it is not binding on State courts or the State Government. Furthermore, the Court was deciding an application for an injunction and the decision is not a final determination of the limits of a public servant's freedom to engage in social media. However, the circumstances of a public servant tweeting critical comments about her employer are probably not unique to the federal sphere and it is likely that a Victorian court would consider the case if a similar issue arose with Victorian public servants. It is therefore a timely reminder to revisit the difficult issue of what kind of online political discussions Victorian public servants may legitimately engage in.
Michaela Banerji works for the Department of Immigration. She has a Twitter account under the pseudonym @LaLegale. She used this account to criticise the immigration policies of the Federal Government, the conditions in detention centres and comments made on these issues by various Ministers and government employees.
Ms Banerji claimed the tweets were a ‘simple expression of political opinion, made in her own time away from work’. The Department claimed that the tweets breached:
- her contract of employment;
- the Department’s Social Media Guidelines; and
- the Australian Public Service’s Code of Conduct.
Twitter and the implied freedom of political communication
In doing so, his Honour made some brief comments about Ms Banerji's Twitter use, and whether the implied constitutional right of freedom of expression protects it, which set the Twittersphere alight and gave many a public servant pause for thought before pressing 'retweet'.
An implied right to freedom of political communication exists in our Constitution, limiting federal or State ‘laws’, be they exercises of legislative or executive power. Free communication on matters of government and politics is necessary for the system of representative and responsible government established by s 7 and s 24 of the Constitution, the High Court unanimously reasoned in the 1997 case Lange. The freedom is not absolute but if limitations are to be imposed on it, those limitations must be ‘reasonably appropriate and adapted’ to maintaining the system of government prescribed by the Constitution.
As his Honour was deciding whether to grant an injunction, Judge Neville did not need to consider whether dismissal of Ms Banerji would be reasonable. His Honour simply found, without explanation, that the implied freedom did not provide ‘a license… to breach a contract of employment’.
This is an interesting finding. Entry into contracts is a textbook example of an exercise of executive power. And the implied freedom of political communication can curtail executive power. This is settled law, even though the only aspect of executive power that has been litigated for infringing the freedom is the exercise of delegated legislative power.
Perhaps some contracts lack a sufficient connection with a ‘law’ to fit within the Lange test. But Commonwealth public servant employment contracts are so intertwined with Public Service Act 1999 that it is surely arguable that the disciplinary provisions within this Act must be interpreted in line with the freedom. A discussion for a later judgment, perhaps?
In the meantime, there are only questions and a degree of angst about acceptable online behavior for public servants. When is tweeting a political opinion OK? Is there a difference between pseudonymous accounts and accounts that identify the public servant? What if Ms Banerji had worked for the Department of Treasury while criticising the Department of Immigration? Perhaps it was the way in which Ms Banerji expressed her tweets, which were described as 'sometimes mocking, sometimes critical'? Would it have been OK if Ms Banerji had a sufficient disclaimer in her bio? If she was praising her Department rather than criticising? If she was simply re-tweeting the views of others?
How would Ms Banerji have fared if she were a Victorian public servant?
Victorian public servants are bound by the Code of Conduct for Victorian Public Sector Employees (No 1) 2007, the Public Service Standards Commissioner’s ‘Guidance for use of social media in the Victorian public sector’ and individual Departmental policies, such as the Department of Justice’s Social Media Policy.
Clause 2.2 of the Code requires public servants to ‘conduct themselves in an apolitical manner' and to avoid 'in the course of their work, any participation in activities which support a political party or independent candidates including attendance at fund raising or similar events’. Whilst Ms Banerji was expressing political views, she claimed not to be doing so in the course of her employment - although it is interesting to note that Ms Banerji is a 'public affairs officer' responsible for communicating the Department's message. Ms Banerji's tweets were not in support of a political party or candidate.
Clause 3.5 of the Code states: ‘When making a comment in a private capacity, public sector employees ensure their comments are not related to any government activity that they are involved in or connected with as a public sector employee and make it clear they are expressing their own view. They ensure personal comments do not compromise their capacity to perform their public sector role in an unbiased manner’. Ms Banerji was tweeting on matters relating to government activity with which she was connected. But did her views prevent her carrying out her role without bias?
The Department of Justice policy that public servants should not ‘make any comment or post any material that might otherwise cause damage to the department's reputation or bring it into disrepute’ is stated to apply only ‘[w]here your comments or profile can identify you as a public servant’.
The issue of how much political discussion is too much for a public servant has always been a difficult one, with clues to the answer lying in the Constitution Act 1975, the Public Administration Act 2004, the Charter of Human Rights and Responsibilities Act 2006, the VPS Code of Conduct and Departmental policy. The issue is not a new one, but social media has made it more visible.
While the answers remain elusive, Victorian public servants engaging in online or offline political discussion would be wise to read and regularly re-read the VPS Code of Conduct and their Department's policies and to 'think before you tweet'. Victorian departments and agencies should also regularly review their social media and other policies to check whether they are providing useful and specific guidance on how their employees may participate in political discussions in their private lives.
For advice on social media use by Government and public servants, please poke:
t 8684 0460