Appeal ... The Immigration Department moved to sack Michaela Banerji after she criticised the government's refugee policies via an anonymous Twitter account. Photo: Jay Cronan
Last month, in Banerji v Bowles, the Federal Circuit Court dismissed a public servant's application for a declaration that any finding that she had breached the APS code of conduct for tweeting her opinions would breach her implied constitutional rights. Judge Warwick Neville ruled there was no unfettered right to freedom of political expression. Banerji recalls another case, Bennett v President, Human Rights and Equal Opportunity Commission, that was decided in 2003. Both cases give cause for reflection on an APS employer's ability to regulate the out-of-work activities and duties that an employee will ordinarily owe to a government employer.
In 1998, Peter Bennett, who was president of the Customs Officers Association (a trade union), was formally warned by Customs' chief executive against making media comments that disclosed information about the ''public business'' of the agency or anything of which he had ''official knowledge''. Bennett was warned that failure to comply with the direction could lead to disciplinary action. He disputed the lawfulness of the direction, and took part in a media interview in November 1998. He was then charged with breaching regulation 7(13) (as it was then) of the Public Service Regulations 1922.
While the judge found against her, he was not entirely unsympathetic to Michaela Banerji.
In Bennett, the Federal Court's Justice Paul Finn held that regulation 7(13) was invalid because it infringed the implied constitutional freedom of political communication. In applying Lange v Australian Broadcasting Corporation, Finn said regulation 7(13) effectively burdened freedom of political communication because, though aimed at a legitimate end (the effective working of government), it was not reasonably appropriate and adapted to furthering that end without unnecessarily or unreasonably impairing the constitutional freedom. The control imposed by the regulation unreasonably impeded the flow of information to the community, being information which, without prejudicing the Commonwealth's interests, could only enlarge the public's knowledge of the executive government's operations and policies.
Duty of loyalty and fidelity
The Commonwealth argued in Bennett that, even if regulation 7(13) was invalid, the duty of loyalty coupled with the power to give directions justified its actions against Bennett. Finn found that, as an employee, Bennett owed the Commonwealth a duty of loyalty and fidelity implied by common law. He noted, in public sector settings, the duty is also sourced in status considerations, and there had been an emphasis on the distinctive employment requirement of loyalty to the Crown, which translates into loyalty to the government of the day.
Finn noted the duty of loyalty and fidelity had ''notorious uncertainties'' and its applications tended to be instance-specific. He made a number of observations:
- The duty must be developed in a way that does not unnecessarily impair the constitutional freedom of political communication.
- The imprecision in the duty is well recognised, so that the content of the duty may be instance-specific, turning on the facts of each case.
- There is no significant Australian jurisprudence on the subject in a public service setting.
- In the particular case, Bennett was both an APS employee and the president of a registered trade union, and it may be that account would need to be given to that fact in deciding whether he had been ''disloyal''.
- The duty of loyalty and fidelity overlaps with the equitable duty in employment settings to protect confidential information.
The Public Service Commission's publication, APS Values and Code of Conduct in Practice, says the common-law duty of loyalty and fidelity is applicable to restrictions on disclosing information in particular circumstances - such as information with a security classification (national or non-national) - in order to protect the legitimate ends and interests of government. Disclosure in such circumstances may breach the common-law duty of loyalty and fidelity.
The commission goes on to say:
Even in relation to unclassified information, the duty of loyalty and fidelity can be relevant. For example, if an APS employee disclosed information in accordance with a personal view and in defiance of agency policy, the employee may have breached the common-law duty of loyalty and fidelity.
One of La Legale's contentious tweets to Sandi Logan.
After Bennett, regulation 2.1 of the Public Service Regulations was amended to ban an APS employee from disclosing information obtained or generated in connection with his or her employment. The regulation's scope has been further clarified by the commission in the above publication:
APS employees need to consider on each occasion whether the disclosure of information could damage the effective working of government, including, for example, in relation to unclassified information and in circumstances where there is no relevant agency head direction. In some cases, it will be acceptable for employees to disclose information that is already lawfully in the public domain. However, there may be circumstances where it is not appropriate either to confirm or deny information already in the public domain. An example would be where a public servant makes a disclosure without authorisation which, because of their official role, has the effect of confirming a previous leak of information.
The constitutionality of the amended regulation was upheld by ACT Supreme Court Justice Richard Refshauge in R v Goreng Goreng. He said the regulation was not a ''catch-all'' provision like its predecessor, but rather a more focused and targeted provision that sought to protect a legitimate government interest.
Michaela Banerji, a public affairs officer employed by the Immigration Department, said her employer was threatening to dismiss her following an investigation that was motivated by earlier bullying complaints she had made against her manager. She contended the department's actions were a breach of her right to express her political opinion, which, she said, was constitutionally protected.
But the department said the investigation was prompted solely by her political tweets - the content of which, it said, was contrary to her obligations to the agency as an employee - and her failure to obtain approval for outside work as a psychoanalyst. An internal investigating officer had concluded she had breached the APS code of conduct and the department's social media guidelines, and recommended she be dismissed. The department told the court it had invited Banerji to comment on the recommendation, and had since taken no further steps in the investigation, in line with undertakings it gave when the court action began.
Banerji had tweeted comments that criticised the security company that polices Australia's immigration detention centres, the government's immigration policies, shadow immigration minister Scott Morrison, Foreign Affairs Minister Bob Carr, former prime minister Julia Gillard, Opposition Leader Tony Abbott and other immigration employees.
Unlike in Bennett, Banerji did not hold any other role (such as a union representative) that might have given her a valid excuse, other than that advanced by her, to comment publicly as she had.
In conducting its investigation (which is ongoing), the department relied on the APS code of conduct set out in section 13 of the Public Service Act, in particular the duty to behave honestly and with integrity under section 13(1) and the requirement to avoid conflicts of interest under section 13 (7). Further, the department's social media guidelines say it is inappropriate for employees to make unofficial public comment that is, or is perceived to be, harsh or extreme in its criticism of the government, a member of Parliament or other political party and their respective policies. Unofficial public comment that involves strong criticism of the department's administration and which could disrupt the workplace also contravenes the guidelines.
Banerji argued she had not done anything wrong, and she had a right to express her political opinion. She argued she was constitutionally protected by an acknowledged freedom of communication on matters of government and politics that was ''an indispensable incident of that system of representative government which the constitution creates'', relying on comments by the High Court's Justice Michael Kirby in ABC v Lenah Game Meats.
But Neville said the ''unbridled right'' to which she referred did not exist, and that, even if it did, it would not provide a licence to breach a contract of employment. The judge said Kirby had qualified his comments about the implied right, and ongoing jurisprudence of the High Court had confirmed it was not unfettered. He concluded that - while she remained employed by the department under a contract of employment and covered by the APS code of conduct and the social media guidelines - Banerji's tweets were not constitutionally protected.
In Banerji, no arguments were raised about the duty of loyalty and fidelity, and it remains to be seen as to what action (if any) the department takes against Banerji. While he found against her, Neville was not entirely unsympathetic to Banerji. He referred to some of the department's correspondence to her, in relation to a grievance she lodged, as being ''less than informative (or otherwise illuminating)'' and ''classic Yes Minister speak'', and recommended that, once she had provided her response to the investigation report, there should be some form of independent mediation to resolve the matter without recourse to further litigation.
John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law.