Source: theguardian.com<\/p>\n\n\n\n
The high court has unanimously upheld a decision to sack a public servant, Michaela Banerji, for anonymous social media posts that criticised the government\u2019s immigration policy.<\/p>\n\n\n\n
The court delivered its judgment in the landmark freedom of speech test case on Wednesday, upholding an appeal from the workers\u2019 compensation agency Comcare which argued it was reasonable for the immigration department to sack Banerji.<\/p>\n\n\n\n
The case has implications for 2 million federal, state and local public servants, as the court declined to use the constitutional implied freedom of communication to rule that the sacking was unreasonable.<\/p>\n\n\n\n
Banerji was sacked for breaching the public service code of conduct \u2013 which requires public servants to be apolitical \u201cat all times\u201d \u2013 for anonymous tweets from her LaLegale\u00a0Twitter\u00a0account.<\/p>\n\n\n\n
After an unsuccessful unfair dismissal claim, Banerji won a workers\u2019 compensation case when the administrative appeals tribunal found her sacking was unreasonable in part because it breached the implied freedom.<\/p>\n\n\n\n
In the majority judgment the chief justice, Susan Kiefel, and justices Virginia Bell, Patrick Keane and Geoffrey Nettle overturned that decision, noting the implied freedom \u201cis not a personal right of free speech\u201d.<\/p>\n\n\n\n
They noted that public service rules that anyone who posts on social media should assume their identity and public employment will be revealed, an \u201cobvious\u201d risk that means even \u201cso-called anonymous tweets\u201d can damage the public service.<\/p>\n\n\n\n
In separate judgments justices Stephen Gageler and James Edelman acknowledged the burden imposed by the public sector gag, which Gageler called direct and \u201csubstantial\u201d and Edelman described as \u201cdeep and broad\u201d.<\/p>\n\n\n\n
But both agreed with the majority that the public sector gag was \u201creasonably necessary and adequately balanced\u201d given the legitimate purpose of ensuring an apolitical public service.<\/p>\n\n\n\n
Outside the court, Banerji said she had taken legal action \u201cto affirm the role of \u2026 freedom of speech for public servants, and we failed\u201d. <\/p>\n\n\n\n
Her lawyer, Allan Anforth, said the case could have implications beyond public sector employment.<\/p>\n\n\n\n
\u201cThe implication is that for any employee-employer relationship, if the employee is critical of the employer\u2019s position on some politically relevant social issue, they can be sacked,\u201d he said.<\/p>\n\n\n\n
The attorney general Christian Porter welcomed the decision, and said it \u201ceffectively supports the status quo regarding the expectations on commonwealth public servants to not compromise the important independence of their departments or agencies\u201d.<\/p>\n\n\n\n
The Community and Public Sector Union national secretary, Nadine Flood, said the union was \u201cdisappointed\u201d in the decision because \u201cpeople working in commonwealth agencies should be allowed normal rights as citizens rather than facing Orwellian censorship because of where they work\u201d.<\/p>\n\n\n\n
Flood said an even more \u201cdraconian\u201d version of the policy had been\u00a0released in 2017\u00a0which warned that liking and sharing social media posts could put them in breach of public sector gag rules.<\/p>\n\n\n\n
\u201cAt the end of the day the government has a responsibility to protect freedom of speech \u2026 with a social media policy that reflects the real world,\u201d she said.<\/p>\n\n\n\n
Greg Barns, spokesman for the Australian Lawyers Alliance, said the case \u201cshows that Australians lack fundamental protections such as freedom of speech\u201d.<\/p>\n\n\n\n
\u201cThe lack of a national human rights charter means government can shut down dissent far too easily,\u201d he said.<\/p>\n