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Public Servant Loses High Court Case: An Analysis

A public servant who operated an anonymous Twitter account that was critical of Australian government policy has lost her high court case over her termination. The Court ruled that her conduct breached the Public Service Code of Conduct. It also denied her application for compensation.

Public Service, or Government Servants?

Let us first look at an example, which the ABC cites, of her Twitter activity. She tweeted the following in May of 2012

@ABCNews24 After the lies about 9/11 and Iraq, why would anyone give credence to ANYTHING said by those who have their own immoral agenda?

This is typical of the anonymous criticism of the government that came forth from her account. All she is doing here is questioning whether, after a government had provably lied, their claims about another issue should be taken seriously. Neither side of politics was mentioned, but for the record, the government of the time was Labor. This is the most tepid criticism you are likely to read, but apparently any criticism of the government is grounds for termination as a public servant.

Defence in Depths: Freedom of Political Communication 

The public servant appealed her original termination to the Administrative Appeals Tribunal, which ruled that her ‘implied freedom of political communication’ rendered the firing illegitimate. This was a strange ruling, since, in our infinite wisdom, we never quite got round to the whole Bill of Rights thing. Hence the High Court’s ruling that no such freedom exists: because it does not. Suffice it to say, if you need to put the word ‘implied’ in front of a freedom, it is not real.

Implications of the Decision

Outside the Court, the public servant’s attorney said the following, again per the ABC

The implications don’t stop at the boundary of public servants. The implication is that for any employee-employer relationship, if the employee is critical of the employer’s position on some politically relevant social issue, they can be sacked…[Mr Anforth said today’s High Court decision effectively meant anything a public servant did had to be] “with loyalty to the government” and not critical of it.

Sounds very damning, but it also happens to be true. There are restrictions on what people can say on social media based on their job. A dear friend of mine is a mental health practitioner. If he were to make posts on social media disparaging his employer, or worse, advocating suicide to the depressed, he would hardly be long for his job. Such restrictions on speech (ignore the ethics of the suicide suggestion) come with the territory, and he knew that going in. He would have precisely no grounds to oppose any termination. This leads into a brief recap of the Folau mess and contract law, leading back to the issue at hand.

An Inconvenient Suggestion: Contract Law and the Folau Comparison 

To briefly raise the ugly head of Folau again, his contract was torn up because he breached its terms. It really was as simple as that. As I suggested in another piece, contract law cares not a fig why you breached the terms of your contract, merely that you did so. It is for this reason that Folau’s religious persecution claim is such crap. A contract is a contract.

Why is this case any different? This woman presumably entered into a contract with the public service. This contract would have contained the equivalent of a ‘don’t be a dickhead’ clause which generally means to not blacken your employer’s name.  Now, even if we agree with what she said (I do), her contract, like many others, prevents her from criticising her employer or blackening their name. Are we suggesting that there is a different standard when the employer is the government? What is it that is different about this case of contract law as opposed to the Folau case? Like Folau, this woman appealed to a non-existent legal freedom to justify breaking her contract (intentionally or otherwise)

Brief disclaimer: do I necessarily agree with the implications of the two previous paragraphs? No. But like Adam Smith in his Wealth of Nations, I merely observe the situation and report what I see.

Further Implications and a Slippery Slope

A little more from the attorney for the public servant

It [the decision] is basically saying that if you take the Queen’s shilling, you surrender your rights to participate in the political process

This idea of loss of political participation was even taken so far in one Facebook meme as to question whether public servants would be allowed to vote soon. This is clearly a slippery slope, as all public servants can vote like any other citizen, but you can see the basis for the question too. Voting against the incumbent government is criticism of their policies. The difference is that, while social media is public, the ballot is secret. Voting does not bring the public service (or the government they serve) into disrepute.

Silence and A Strawman: The Reaction

The silence of the right-wing free speech advocates who defend Bolt and the rest of the Bigot Brigade is deafening. Crickets. Where are you now, you bellicose belugas? Seems freedom of speech, like any other legal protection is, as is so typical for conservatives, for them and theirs, not you and yours. One wonders if their reaction would have been any different if the partisan makeup of the parliament were different, but I digress.

As for the strawman, Nadine Flood is the National Secretary of the Community and Public Sector Union (CPSU). She issue this statement in response to the decision

The notion that the mum of a gay son who happens to work in Centrelink can’t like a Facebook post on marriage equality without endangering her job is patently absurd

That example is not comparable to this case, and is a strawman of the facts, even of the government’s position on the issue. Contrary to the conservatives’ 10,000 men put forth in defence of ‘tradition’, marriage equality is the law of the land. So this claim is wrong on the facts. But even so, liking a facebook post is quite different from sending thousands of tweets, some of which contained the type of inside information that only a government employee could possess.

Conclusion

The true implications of this case will play out over time. But at the moment, based on what I have read, this is a case of contract law. She violated the terms and suffered as a result. As a case of black letter contract law, the Court is right on this – as much as I hate to say it.

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11 comments

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  1. paul walter

    The bench should be hung drawn and quartered.

    The decision is a stilleto through the heart of democracy, as those cretins know full well.

    https://www.abc.net.au/news/2019-08-07/high-court-free-speech-public-service–banerji-decision/11377990?fbclid=IwAR1imhuOQ7dUaTbErxhjV_iDMu0OoYi7cG3uPv6z852BvGlmx7dMVjhIh_E

    And a different but congruous note, this.

    https://www.abc.net.au/news/2019-08-07/kenneth-hayne-says-trust-in-political-institutions-has-eroded/11393488

    This ignorant, idiot bench has wilfully ignored the forest for a very spindly, nine-tenths dead tree.

  2. Ill fares the land

    Also don’t overlook the fact that she was only found out because some slimy weasel that she worked with seemed to know of a Facebook page with a picture that was the same as her screen saver on her work computer. That weasel then dobbed her in, suggesting that she was not at all popular with at least some of her work colleagues.

    It is a farce that the High Court insists on enforcing the “apolitical” stance demanded under the Public Service code of conduct in this case, but we read of instances regularly where public servants seem to be more than a little political.

    Phil Gaetjens – a Liberal Party hack in charge of Treasury and within no time, Treasury staff are out trumpeting the LNP agenda on the corporate lunch circuit (i.e., wages are low because employees won’t change jobs – nothing to do with the LNP’s inept economic management). Then there are the LNP hacks appointed to the AAT and who appear to be acting in a manner strangely consistent with LNP policy. Nothing too apolitical to be seen there – but apparently those things don’t warrant much attention.

  3. New England Cocky

    This appears to be a public policy decision much like the case of a person taking personal responsibility for self protection by not walking over a cliff at night when you are drunk.

    However, I agree that it is another example of the unwanted slide towards the Fuhrerstat practised by a democratically elected government in Germany between 1933 and 1945.

    Look forward to the late night end of session legislation introduced to protect the intriguing and threatened Swampweed Possum that contains the disenfranchisement of public servants among the financial appendices.

  4. Terence Mills

    You cannot blame the High Court for explaining the laws that have been passed by the parliament that was elected by the people.

    The point is, as will probably be demonstrated by the Witness K case if we ever get to see the outcome : we don’t have any constitutionally entrenched right to freedom of speech – what we do have is what the likes of Peter Dutton deem to be suitable to maintain his power base.

    Incidentally, the Public Service Act allows for several alternative sanctions under s.15(1) :

    (a) termination of employment;

    (b) reduction in classification;

    (c) re-assignment of duties;

    (d) reduction in salary;

    (e) deductions from salary, by way of fine;

    (f) a reprimand.

    In my view the termination was excessive and I would have though a reprimand would have been more appropriate. But then, I’m not Peter Dutton.

    I wonder if any public servants would be game to post on this or similar sites in the future ?

  5. Joseph Carli

    I say that if one is born and raised into the coterie of the “cosciousness of kind” network in a particular class of society, one would be inclined..via a subconscious obsequious connection to one’s peers in that coterie.. to cast one’s “vote” into the urn of societal expectation….and to give LaLegale the onus of innocence would be to condemn the restraining laws directed at the plebs’ of those same peers who both frame one’s class distinctions and perhaps…metaphorically…pick up the drinks tab for one’s night after a day losing at the races in the members bar.

  6. Spindoctor

    So another prominent legal, moral and ethical barrier put in the way of public service whistleblowers outing corruption, fraud and cronyism which is endemic, ongoing and seemingly unstopable under this rabble.

  7. Max Gross

    To repeat: ‘implied freedom of political communication’ is NO freedom at all. The High Court has confirmed Australians do NOT have the freedoms they think they have. And without a Bill of Rights we are nothing but a faux democracy.

  8. Terence Mills

    “I may disagree with what you say but I will fight to the death to protect your right to say it……..unless you are an Australian public servant, in which case leave your brains your ethics and your morality at the door.

    Attributed to Homer Simpson and as adapted by Peter Dutton .

  9. Jim Duffield

    Nuremberg….

  10. Pete Petrass

    Well that was complete and utter rubbish. Everyone is entitled to their own opinions and beliefs in a real democracy. Just because you work for a government or company does not mean they can force you to like them or believe in what they are doing. Particularly as a Public Servant, governments come and go and nobody is going to like all of them. You go to work and do your job, you only work for them and they do not “own” you. Employers cannot and should not control what you do outside work hours.

  11. Matters Not

    Re:

    true implications of this case will play out over time

    Indeed! For a start, who is a public servant? Because that definition will have significant impact on the way many people behave in the foreseeable future.

    While many teachers in public schools don’t see themselves as public servants – they all are. Staying with teachers for the present, what are the implications when one of their number becomes (for example) President of the Queensland Teachers Union. Technically, the person is still a Queensland Public Servant – just on leave for an indefinite period of time. So, we could have a President of an industrial union who can’t criticise the government of the day because he/she remains a public servant. One could reasonably ask the question, how does this person do the job? Perhaps an exception might be made? If so, then does that exception also apply to the Branch Presidents and/or Secretaries – of whom there are many? How should a QTU Council Representative react when approached for comment during an industrial dispute? No comment? The possibilities are endless and certainly doesn’t stop with teachers. There are nurses, police, fire … even magistrates,

    Seems to me that the Court has done governments (of all political persuasions) no favours. So many pragmatic, political arrangements currently in play are now up for grabs. Long hidden potential conflicts are now likely to surface – (and that could be a good thing.)

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