An Immigration Department decision to sack a public servant for tweeting criticisms of Australia's detention policies will be put to the legal test again after the government refused to compensate her for post-traumatic stress.
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Michaela Banerji is taking the government to an appeals tribunal after federal workplace insurer Comcare refused to compensate her for the psychological condition that developed after she was sacked in 2013 over tweets from a pseudonymous Twitter account.
The former public servant was working in the Immigration Department when co-workers learnt she was behind the tweets railing against the government's treatment of asylum seekers.
She lost a high-profile attempt to stop her dismissal in the Federal Circuit Court in 2013, a decision seen as likely to curtail other bureaucrats' use of social media when judge Warwick Neville found Australians had no "unfettered implied right (or freedom) of political expression".
After Comcare denied Ms Banerji compensation for her post-traumatic stress, she took the workplace insurer to the Administrative Appeals Tribunal last month where her lawyers hope the case is referred to the full bench of the Federal Court for a fresh round of arguments over whether her sacking was lawful.
In a case that Ms Banerji's lawyer Allan Anforth from Canberra Chambers says could have implications for other public and private sector employees, her legal counsel says Comcare's refusal was based on a dismissal that was unlawful because it intruded on her right to free political expression.
Her tweets, made from the Twitter handle @LaLegale, were anonymous and did not disclose confidential departmental information, but an internal investigation in 2012 found she had breached the code of conduct for government employees.
In a submission to the tribunal, her legal counsel said the tweets were posted from her own phone and, in most cases, outside work hours.
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The code of conduct did not apply to Ms Banerji's political comments, making her sacking inconsistent with constitutional protections for freedom of political communication, it said.
"When a person commences employment with the Commonwealth they are not required and cannot be compelled to turn off their moral and political brain," the submission said.
"They are free to engage in the political process in the same manner as other citizens save only that they cannot use or misuse their office in that process."
Ms Banerji's lawyers said Australian Public Service staff would be unable to join industrial action against wage policy or express negative views on policies to friends over dinner if their employment meant they could not express private opinions inconsistent with the government.
"The Commonwealth has no right to demand the intellectual or moral obedience of APS officers to the policies of the government of the day; or to otherwise burden free private political communications by APS officers."
Ms Banerji's legal counsel said private sector employees would also be unable to privately or publicly criticise their employer for its political actions.
Her case could enter the Federal Court only months after the government released tough new social media rules that may put its public servants in breach if they criticise policies by "liking" posts on Facebook or Twitter or by sharing negative information or comments in private emails.
The new rules warn public servants don't have unlimited rights of free speech, ban anonymous posts criticising the government, including those written with a pseudonym, and remind bureaucrats they can be traced through their digital footprint or via a "dob-in" to their department.
Both Comcare and the Department of Home Affairs, which has absorbed the former Immigration Department, declined to comment on the tribunal case.
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