The AAT has found that the termination of employment of a former public servant who tweeted anonymously trespassed on the implied freedom of political communication and was therefore unlawful, in a decision which examined the scope and application of the Public Service Act 1999 (Cth) (PSA) in the context of reviewing a denied workers compensation claim.
Michaela Banerji brought proceedings in the AAT seeking review of a decision by Comcare to deny her workers compensation claim for a post-traumatic stress disorder she developed because of a decision by the Department of Immigration and Citizenship (Department) to terminate her employment in 2013 for breach of the PSA Code of Conduct (Code), and Department Guidelines regarding use of social media (Guidelines). The conduct relied upon by the Department was Ms Banerji’s use of a Twitter account using the twitter handle LaLegale to post tweets which were critical of the then government, immigration minister, members of the Commonwealth Parliament, government immigration policy and the Department’s Communication manager.
Comcare argued that the decision to terminate was ‘reasonable administrative action’ taken in respect of Ms Banerji’s employment so that liability for her condition was excluded from the meaning of ‘injury’ under section 5A(1) of the Safety, Rehabilitation and Compensation Act 1988. Ms Banerji argued that the termination of her employment was not reasonable administration action carried out in a reasonable manner, if it was carried out in breach of the implied freedom of political communication as identified by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
In finding that the decision to terminate Ms Banerji’s employment for breach of the Code and Department Guidelines did trespass on the implied freedom of political communication, the Tribunal considered whether the terms of the Code and Guidelines (as at 2013) were reasonably appropriate, and adapted to achieving the legitimate purpose of the Code i.e. maintaining an apolitical public service and public confidence in that service (legitimate purpose).
Focusing on the distinction made in the Guidelines between ‘open comments’ (where the identity of an author is made public) and ‘anonymous comments’, the Tribunal found that while the application of the Code and Guidelines struck an appropriate balance between the implied freedom and the legitimate purpose in respect of open comments made by public servants, the same could not be said of anonymous comments. It found that the public policy considerations designed to be protected by the Code fell away when the speaker was unknown, with the Tribunal observing that:
“a law purporting to prevent anonymous expression of opinion… requires a powerful justification if it is to displace the implied freedom of political communication”.
As Ms Banerji had tweeted anonymously, the burden of the operation of the Code on Ms Banerji’s freedom to politically communicate (namely the sanction of termination of employment for breach of the Code), was not justified by the legitimate purpose the sanction was designed to protect. For this reason, the termination was unlawful, and therefore not reasonable administrative action. The decision of Comcare about Ms Banerji’s workers compensation claim was consequently set aside.
The decision by the AAT should be seen in the context of the decision of Judge Neville in the Federal Circuit Court in Banerji v Bowles  FCCA 1052, which was an application by Ms Banjerji for an interlocutory injunction to stop her employment being terminated by the department for the tweeting conduct. In this case His Honour did not need to consider whether dismissal of Ms Banerji would be reasonable but found that that there was no unfettered right of political expression/communication and the implied freedom did not provide ‘a license… to breach a contract of employment’.
The AAT decision may well result in a review of the Code and Guidelines dealing with public servant use of social media, particularly anonymous political comments. Certainly the decision makes even murkier the distinction between the public and private lives of public servants and “freedom of speech” in the age of social media.