Perhaps it should come as no surprise that, on Wednesday, the High Court of Australia confirmed the federal government's power to silence its public servants. Even in the United States, that bastion of free speech with its robust First Amendment, the ability of government employees to engage in political debate is limited. American judge Oliver Wendell Holmes once quipped: "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." That just about sums up the High Court's judgment in Comcare v Banerji.
Whatever your position on Michaela Banerji's politics, one cannot help but feel some sympathy for her plight. Banerji was fired from the Department of Immigration in 2012, after its internal investigations revealed that she was behind an anonymous Twitter account filled with criticism of Australia's border protection policies. This, the department contended, was contrary to her obligations under the APS Code of Conduct to be impartial in accordance with the APS Values "at all times".
The public servant has spent much of this decade fighting that decision. After initial skirmishes in the Federal Circuit Court and Administrative Appeals Tribunal, her battle with the department and its workers' compensation provider, Comcare, reached the highest court in the country.
For the first time, the High Court was faced with a dilemma that has vexed judges across the globe. There are compelling arguments for public sector neutrality, from both a principled and instrumental perspective. A politicised public service would be no good thing - mass staff turnover after every election and a reversion to political patronage networks would be just some of the implications.
But there are strong grounds for the inclusion of public servants in political debates. Government employees are equal citizens in Australia's democracy - we have not created, in the words of former academic and judge Paul Finn, "a separate caste of public officials." Given the quantity and quality of Australia's government employees, muting them risks significantly degrading public discourse.
The risk is that many public servants will just stay silent entirely.
Following five months of deliberations on the appropriate balance to strike between these competing factors, the High Court on Wednesday issued its 87-page judgment. Banerji had hoped for vindication; instead, Australia's seven top judges overwhelmingly found in favour of the government.
The joint judgment of Chief Justice Susan Kiefel and Justices Virginia Bell, Patrick Keane and Geoffrey Nettle was emphatic. "There can be no doubt," their Honours said, "that the maintenance and protection of an apolitical and professional public service" was a legitimate purpose consistent with Australia's constitution.
The statutory mechanisms implemented by the Public Service Act to achieve that purpose, they held, were "a plainly reasoned and focused response" to the purpose. Accordingly, Banerji's termination and the statute that authorised it were constitutional.
More nuance could be found in the individual judgments from Justices Stephen Gageler, Michelle Gordon and James Edelman. Gageler noted that the requirements of the APS Code of Conduct concerning political speech would be "highly situation-specific". Edelman pointed to various relevant factors, including seniority, topic, forum, intended dissemination and nexus with the public service, that would determine whether political comment might contravene the code. But the court was unified in holding that the Code of Conduct was constitutional, and therefore Banerji's sacking was valid.
The case's impact is significant. There are about two million government employees in Australia, across federal, state and local government - constituting approximately 16 per cent of the national workforce. After this decision, they will all have to think carefully about engaging in political debate. Edelman admitted in his judgment that the APS Code of Conduct "casts a powerful chill over political communication". That chill will be felt in government workplaces across Australia in the coming days.
Edelman was at pains to point out that the High Court's interpretation of the code does not entirely "preclude a public servant from making political comment on social media." Instead, he observed, the code "creates a boundary, albeit ill-defined, between acceptable expression of political opinions and unacceptable expression of political opinions."
But after Banerji, how many public servants will dare traverse towards that blurry line between acceptable and unacceptable engagement in political debate? The risk is that many public servants will just stay silent entirely. That is no good thing for Australian democracy.
The issues raised by the High Court's decision are hardly novel. The judgment cites Northcote-Trevelyan Report of 1854, which reformed the British civil service and put political neutrality at its heart. Ever since, the balance to be struck between the competing interests has been a live concern, the relevance of which has only been heightened recently by the advent of social media.
Reasonable minds can differ on how the balance should be struck. That line-drawing exercise was not the High Court's task - it was simply required to determine whether the line that has been drawn by the federal government is constitutionally permissible.
It that regard it disagreed with the underlying Administrative Appeal Tribunal decision, which had described restrictions on anonymous political comment as bearing "a discomforting resemblance to George Orwell's thoughtcrime." It might be hyperbolic to suggest that Banerjii brings Australian society one step closer to 1984. But by chilling the ability of public servants to engage in political debate, the High Court has done no favours for robust political debate in this country.
- Kieran Pender is a visiting fellow at the Australian National University's Centre for International and Public Law.