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Public servant loses fight over Twitter attack on government

Michaela Banerji was told last year she would be sacked after she criticised her department via an anonymous Twitter account.

Michaela Banerji was told last year she would be sacked after she criticised her department via an anonymous Twitter account. Photo: Jay Cronan

A court has paved the way for a public servant who criticised the government on Twitter to be sacked, even though she did not reveal her name or her job to her readers.

In a decision likely to curtail bureaucrats' use of social media, Federal Circuit Court Judge Warwick Neville rejected Michaela Banerji's application for a stay on her dismissal.

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.

Michaela Banerji may lose her job over 'anonymous' tweets such as this.

Michaela Banerji may lose her job over 'anonymous' tweets such as this.

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.

Her application for an injunction on her sacking was decided last week after a lengthy investigation of whether the constitution protected public servants' freedom of speech.

Judge Neville found Australians had no ''unfettered implied right (or freedom) of political expression''.

He also declined to grant a stay on Ms Banerji's dismissal, noting she had not yet been sacked.

Ms Banerji, a public affairs officer, used microblogging website Twitter under the name @LaLegale. She had more than 700 ''followers'', or readers, when her department investigated her comments. 

She regularly posted critical tweets about Australia's immigration detention policies, the security company that works at detention centres, and government and opposition frontbenchers.

Ms Banerji initially denied the Twitter account was hers, but in October last year her investigator, Robyn White, wrote she was ''satisfied that, on the balance of probabilities, the evidence provided, although circumstantial, does support the conclusion that the LaLegale account is yours''.

Ms White found the comments were ''highly critical of the government, the minister, the immigration portfolio and ... Sandi Logan''.

In one exchange on Twitter, Mr Logan had praised an African refugee, Garang Dut, who graduated as a doctor in Melbourne.

@LaLegale replied: ''Perhaps Dut can now make up for deaths and agonies of unlawful, immoral and destructive [immigration detention centres]. Different kind of ‘refugee camps'.''

Ms Banerji had also continued to work in a second job as a psychoanalyst, beyond the period for which the department had permitted.

Ms White recommended Ms Banerji be dismissed as a result of the two breaches of the Australian Public Service's code of conduct, noting bureaucrats must avoid making ''harsh or extreme'' criticisms of politicians or their policies.

However, Ms Banerji, who has a law degree and represented herself in the case, argued none of her tweets were ''offensive or damaging to individual persons, but instead, they are expressions of political opinion, to which all Australian citizens have a constitutionally implied right''.

''It is evident that they are a simple expression of political opinion, made in [my] own time away from work.''

She said any finding of misconduct against a public servant ''for expressing a political opinion contravenes the implied constitutional freedom of political communication''.

She also said she had been subjected to a ''history of victimisation'' in the department and had made a ''whistleblower complaint'' against Mr Logan, accusing him of ''covert surveillance of an employee's social media account without her knowledge''.

However, Judge Neville said the High Court had found that citizens' implied rights of political expression were limited.

''Further, even if there be a constitutional right of the kind for which [Ms Banerji] contends, it does not provide a licence ... to breach a contract of employment,'' the judge said.

He pointed out Ms Banerji was still able to request a review of the department's recommendation to sack her, and encouraged both sides to enter mediation.

The Immigration Department would not comment on Monday on what action it would take against Ms Banerji, citing privacy concerns.

Public servants have the same notional political freedoms as other citizens, though the Public Service Commission warns them to avoid making comments that may raise questions about their impartiality.

The commission advises staff to uphold the service's values and code of conduct ''even when material is posted anonymously, or using an ‘alias' or pseudonym, and should bear in mind that even if they do not identify themselves online as an APS employee or an employee of their agency, they could ... be recognised as such''.

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