Anonymity gives public servants no protection from sacking for making political comments, the federal government has told the High Court.
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Attorney-General Christian Porter has rejected arguments from a former Immigration Department worker, who says the government wrongly gagged her free speech by dismissing her in 2013 over anonymous anti-government tweets.
The federal government's lawyers, in a reply last week to Michaela Banerji's submissions, said the potential for public servants to be traced as the source of political comments and damage their workplace's non-partisan reputation gave reason enough for punishment.
Solicitor-general Stephen Donaghue, and lawyers Craig Lenehan and Julia Watson, said it didn't matter when Australian Public Service staff were outed as the source after making the comments.
"What matters is the prospect of damage to the APS, not the temporal proximity between the conduct and the damage," they said.
Departmental secretaries anonymously live-tweeting criticisms of their minister's portfolio would damage their workplace even if they weren't identified until later, the government told the court.
The federal government could not punish the conduct if anonymous comments were protected, its lawyers said.
"No action could be taken against the secretary, even if the secretary's identity was later publicly exposed through, for example, questioning at a parliamentary committee or the actions of a journalist or computer hacker."
Federal employers would also have trouble punishing a bureaucrat recorded in a racist tirade on public transport.
"Why should it matter whether that employee is immediately identified (e.g. by a colleague on the bus) or more remotely identified (such as in the media the next day)?," they said.
"The 'damaging' effect on the APS that would be caused by such a tirade is identical in each case. The position is no different if the tirade originally occurred in an 'anonymous' post online, but the person who made that post is later identified as an APS employee."
Federal government lawyers also disputed Ms Banerji's claim that the Immigration Department, now named Home Affairs, risked its own reputation by outing her as the source of tweets criticising Australia's treatment of asylum seekers.
"That reasoning attributes to the messenger responsibility for damage caused by the content of the message," they said.
Ms Banerji's lawyers told the High Court earlier this month her tweets couldn't have undermined faith in the bureaucracy's impartial role because Twitter users couldn't trace her anonymous comments to a public servant.
The federal government argued last month political expression for public servants was rightly restricted to protect the bureaucracy's impartial role in the interests of responsible and representative government.
Mr Porter intervened in the case when Ms Banerji won an appeal against the federal workplace insurer after it refused to compensate her for the psychological condition that developed following her sacking.
The Administrative Appeals Tribunal in April found guidelines stopping bureaucrats from publicly criticising the government should not apply to anonymous comments, and that Ms Banerji's dismissal intruded impermissibly on her free speech.
Mr Porter sent the government's appeal against the finding to the High Court, flagging the case's potential to undermine rules stopping public servants from expressing their political views on social media.
Ms Banerji 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".
The High Court case will continue in 2019.
