Free Speech and Whistle Blowers: An Update – with Kieran Pender
Today’s episode revisits the issue of free speech in the workplace. This follows the recent outcome of the Michaela Banerji case in the High Court, which has made plenty of people question whether they can say what they want without losing their jobs, and under what circumstances they might.
The internet age now offers people around the world the opportunity to express their views on issues affecting the world around them at any time. What happens if those views are at odds with their employer?
Kieran Pender, journalist and visiting fellow at the ANU College of Law, joins us to discuss the path of this case into the High Court, the legal principles surrounding it and whether we are any closer to understanding the implications of its ruling on future cases.
For more resources, see our HR Breakfast Club resources below. If you have a topic that you would like us to discuss, we would be happy to hear from you, please contact us!
Some topics we cover:
- Australians don’t have a constitutional guarantee to free speech.
- Public servants and their right to free speech and the nuances associated with this
- If the recent ruling of the Michaela Banerji case has provided clarity on whether public servants should express their political views on platforms such as Twitter if they are critical of the current government
- Was Banerji just an extreme case?
- As a result of this case, what are the implications for future cases in the internet age?
Genevieve Jacobs: Hello, this is the HR Breakfast Club podcast. I’m Genevieve Jacobs with a focus on the world of work in Australia with a legal spin. We look at HR issues that arise in the workplace and important information about how you might approach them. Our website is hrbreakfastclub.com.au and if you’d like to make contact with some questions, we can respond to those as well and keep you updated on recent developments.
This time around we’re taking a second look at the issue of free speech in the workplace. This follows the recent Michaela Banerji outcome in the High Court, which has made plenty of people question whether they can say what they want without losing their jobs, and under what circumstances.
My guest today joining us from London is Kieran Pender, he’s currently a visiting fellow at the ANU College of Law and a journalist who began his employment law career here in Canberra. Kieran Pender, thanks so much for joining us on the HR Breakfast Club podcast.
Kieran Pender: Thanks for having me back.
Genevieve: Let’s start with a refresher on this torturously extended case, which has wound its way through multiple courts. What was in dispute in the first place?
Kieran: Michaela Banerji was a public servant in Canberra, the Department of Immigration, and in 2011, she joined Twitter and she joined Twitter with a pseudonym @LallaGao didn’t indicate that she was a public servant or who she was. She began posting very critically of Australia’s Border Protection Policy, critical of bureaucrats and of politicians.
One of her colleagues suspected that she was behind this account and advised her superiors. They carried out an investigation, and in 2012 moved to terminate her employment for breach of the APS code of conduct. That went to the Federal Circuit Court, it went to the Administrative Appeals Tribunal, and it went to the High Court and finally, more than half a decade after this all started, it ended up in the High Court and in August they handed down their judgment.
Genevieve: What happened along the way to finally bring it to the High Court, because it’s not a straightforward case of Banerji against the APS the entire way through, is it?
Kieran: That’s correct, so it began in the Federal Circuit Court when they tried to terminate her employment, she went to the Circuit Court and asked for an injunction on free speech constitutional grounds, and she lost that application, so she was then terminated and she brought a worker’s compensation claim on the basis of injuries she said she suffered as a result of the termination.
Comcare denied that claim, and she appealed internally, was denied, appealed to the Minister of Appeals Tribunal and won, and the AIT said that the limitations on her free speech where she was terminated as result of that speech was contrary to the constitutional protections, the implied political communication protection in our Constitution, and therefore, it was unlawful for the department to terminate her and therefore the exception for lawful and reasonable management in the Comcare Act for workers compensation was not applicable.
She won and that would have been that. She would have got her compensation, but still been terminated, but the government then appealed and that went to the Federal Court, which was removed to the High Court. The government appreciated how significant a case this was affecting not just Michaela and her department in her immediate dispute but really affecting all federal government employees and arguably all state and local government employees, too.
Genevieve: That’s essentially the point here because this particular case has significance. We’ll discuss a little bit later whether the facts warrant that significance whether it’s a good example of the matters that are at stake but talk to me about the legal principles here, the nub of this.
Kieran: Australians don’t have a free speech guarantee, and so that’s the starting point, we have a fairly weak constitutional protection for political communication, which is implied rather than express, but it does still limit government ability to regulate speech and provides some protection, and so this went to the strength of that protection as the public servants and it petered two very compelling and competing principles.
On one hand, an impartial bureaucracy is a good thing. We’ve had a system of impartial bureaucracy that begins in the 1850s in the UK and persists in Australia to this day. I think we can all agree that we don’t want a hyper-partisan public service, but public servants are members of society too and given the significant number of them in our society, silencing them and having them as second class citizens is bad, not just for them from a rights-based perspective, but for all of us.
That would really degrade the quality of political discourse if we entirely silenced government employees, but how you reconcile those two compelling and competing principles or interests, and there’s no easy answer, and ultimately, that was the question that went to the High Court for the first time and that was heard in March, and as I said, decided just in August.
Genevieve: There was a majority decision rather than a unanimous majority, what did the High Court actually say on that key issue of the right to free speech of a public servant and where the APS code intersected with that?
Kieran: All seven judges of the High Court found for the government and said that her termination was lawful, but it was across a number of different judgments, so there was a majority judgment of four judges and three single decisions, which provides some added nuance, but the crux of it that comes across all seven judges is that, in this instance, the APS code of conduct is constitutional in its limitations it applies on public servant free speech and the way this case had come about, it wasn’t an instance where they were going to strike down that law, either in the single application of it or generally.
Essentially, the High Court has given a blank cheque to the government on curtailing the free speech and political expression of public servants. Now, there is some nuance there, some of the judges talked about the different factors at play, how senior you are in your role, whether you’re talking about something that directly relates to your department, or to another department, the nature of your discourse, so her tweets were very vitriolic, whereas if you made moderately toned political comments, maybe that would be a different matter.
The problem is the chilling effect that all of this has in that there is a line somewhere between speech that wouldn’t be legitimately covered by these prohibitions and speech that is covered, but what public servant is going to find out where that line is. Unless you’re very confident that you’re on the right side of that line, you won’t stray into that dubious territory and so that cast this chill and I think that should be of concern for all members of Australian society.
Genevieve: Kieran Pender is with me here on the HR Breakfast Club podcast, here with me, Genevieve Jacobs, and we’ve been discussing the High Court’s findings in the recent Michaela Banerji case, centring on many forcefully expressed tweets by a Commonwealth public servant. Kieran, when we last spoke, you said that there was a real need for clarity, now has the High Court’s finding delivered that?
Kieran: Yes, to an extent, which is clarity that public servants would be very ill-advised in publicly expressing their political views. Because the High Court has empowered government departments and centrally via the Australian Public Service Commission, which issues guidance on these issues, the High Court has given them authorisation, constitutional authorisation to take these steps, and so if I was a public servant, I wouldn’t be freely expressing my political views.
Now, again, reasonable minds can differ on whether or not that’s a good thing and where you draw the exact line, but the way the High Court has gone about this has given fairly broad authorisation and not done much to keep the government’s approach in check. Yes, there is clarity, but it’s not clarity that those who want to stand up for the free speech rights of public servants were looking for.
Genevieve: Although, Kieran, I wonder about this, whether this can be a good test case on the facts, when, as you suggested a moment ago, Ms Banerji was prolific, she was scathing, about things that were directly related to her exact line of work, was Banerji just an extreme case?
Kieran: Yes, and there’s a saying that comes from the US Supreme Court that hard cases make bad law, and I think that’s arguably the case here. The challenge is though that we’re not going to see another case of this nature go up to the High Court for some time, particularly given how emphatic the High Court was it would take a very brave litigant and brave counsel to want to argue a case of this nature again where the line is a little bit more blurry.
For example, say you had APS4 who worked in administration or an APS3 in the Department of Border Protection, Banerji’s department, and they tweeted about climate change and climate change policy in a very moderate tone, informed tone, just making fairly cerebral criticism of the government policy. It’s arguable that if they were fired for those comments, that would be close to the line and maybe you have a better test case, which would force the court to confront these issues, but we’re now at least for some time, not going to get a judgment of that nature because this is the test case we did have.
I think it’s also important to mention that of the cases that have come before the court, this was the only one that’s been to the High Court, but we’ve had several others in lower jurisdictions. They’ve all involved criticism, but as one of the judges pointed out, neutrality cuts both ways, and I think it’s very interesting that in the Public Service Commission’s guidance, it encourages public servants or permits them to praise government policy. We haven’t seen anyone fired for posting in favour of government policy in emphatic terms and yet, that’s what neutrality requires, it has to cut both ways if it is legitimate. I think what the High Court failed to see here is this broader pattern. Beyond this particular case, this broader pattern of silencing critics, which suggests perhaps an ulterior motive.
Genevieve: I’m imagining with some pleasure the results of the effusive price of government positions [chuckles], let’s see how that works out. We want to hear from you though, Kieran, what are the implications for every public servant who has ever had an opinion about anything, as you were just saying a moment ago, we’re really perhaps not that much closer to understanding where the line would lie for something that was much more nuanced.
Kieran: Exactly, but I think there’ll be a chilling effect. I know, I’ve spoken to public servants who have told me that there is a real fee now about what is and isn’t legitimate to post and to say, and so, I think we’ll have people self-censoring, and that is the problem. In US free speech law, which isn’t directly relevant given the very different constitutional histories, but there is an idea that when there is a risk of a chilling effect, the court might give less deference to government action and take a more exacting approach because of that chilling risk, which doesn’t just cut off the speech that it is intended to cut off, but has a broader silencing effect.
We don’t have such a doctrine in Australia, but I do think that’s what we’re saying in effect. I think the reality is that will continue for some time until we have another public servant who is willing to bring a case in more, perhaps a better test case. The other thing I would say though is, we’ve always seen waxing and waning on these issues, so, in Australia, in the federal level, limitations on government employee free speech began in 1902, straight after Federation, and they’ve been here ever since, and they’ve been more restrictive, they’ve been less restrictive, that’s come and gone.
Now, the Internet age has given rise to more restrictions. We had a liberalisation in the ’70s and ’80s, and then a crackdown in the 2000s and 2010s, and so, that I guess is the history of that and we’ll probably see that waxing and waning continue. At the moment, I think in the current political climate, it’s unfortunate that we are seeing a tightening of the ability of government employees to express their political views.
Genevieve: We do seem to be on the brink of a far more vigorous discussion not only about free speech but also about religious freedoms, and those two matters obviously correlate often in the public realm. Would you connect Ms Banerji’s situation to that of Israel Folau, for example, given that in both cases, it’s to do with conditions of employment?
Kieran: That’s a question I’ve been asked several times since that judgment came out, and the answer is, no on narrow grounds but yes on broader grounds, so, no government employment and private sector employment are very distinct in their nature, and the legal context that surrounds it, and so, they’re not directly relevant and I would be surprised to see the Banerji judgment cited by the court determining the Folau case.
I think they raised the same broader question of the line between employment and private time and the intersection between those, and we’re currently at a stage where that line has blurred, and employers are reaching much further into the private lives of employees. I think the religious freedom aspect is interesting, and as I understand it is a draft law that the governor has proposed, which could limit the ability of employers to restrict comments such as that of Folau. I think that there’s a bit of dissonance there with the Banerji situation, and if her comments have gone to religious freedom, and she’d been fired, as I understand that this new proposed law might have limited, at least if she was a private-sector employer.
That speaks to the fact there’s not a lot of unified thinking or broader thinking together on these issues. I think people are hitting these individual issues as they arise without thinking about the broader context and I think that’s a discussion we need to have. This fits into a broader point about government transparency, we’ve seen the raids on ABC and on news, we’ve seen very weak protections for government whistleblowers, we’re seeing the prosecution of several government whistleblowers tightening up of official secrecy laws.
These things fit into a broader context that different pieces of the same puzzle, and I think abroad a national conversation about the society we want to live in, and whether we want government employees to express their political views on not is important, although I think in the current state of political discourse, it might be one that I’m being overly optimistic in hoping for.
Genevieve: I did wonder actually whether there are some whistleblowers for example, who are speaking out against corruption or unjust behaviour.
Kieran: Yes, there are, and it’s interesting one of the cases that previously as a case of this, which was Bennett in the early 2000s involving a customs worker, that went more to the idea of disclosure of information and the ability of the government to restrict that disclosure. This case- Banerji was more about standards of behaviour, and so, there’s a conceptual difference there, but ultimately, perhaps they’re two sides of the same coin, and if you’re not protected by whistleblower protections, of which the ones for federal public servants, are demonstrated to be weak, and in 2016, there was a review of them, an independent review, which made a suite of recommendations which haven’t yet been acted upon.
In light of that context, the weak protections for speaking freely in light of Banerji compound the weakness, and that’s an issue that’s come up a lot in the US. Again, different contexts, but the US courts have said, perhaps we don’t need to give robust free speech rights to government employees because they have whistleblower protection, so, they’re two sides of the same coin.
Genevieve: Just finally, I wonder whether this goes to an argument for the Bill of Rights or some kind of guarantee of free speech that goes beyond that current implied freedom that’s not a personal right, it is this also part of the national argument we must have.
Kieran: I think it is further food for thought in that discussion. Although again to return to the US, the US experience indicates that an explicit free speech protection is no panacea for government employees, so even in that context, when the first amendment, US courts have been surprisingly willing to let government employees be terminated, et cetera, for expressing political views, because of this point about political and bureaucratic impartiality. Yes, I think it would strengthen the position of someone like Michaela Banerji if we had the first amendment, but it is no ironclad guarantee, as the US experience indicates.
Genevieve: Kieran, terrific to talk to you about this again, thank you very much for the update.
Kieran: Thanks a lot.
Genevieve: Thanks for your time, too. I’m Genevieve Jacobs, we’ve been discussing free speech in the workplace with Kieran Pender who is currently a visiting fellow at the ANU College of Law. Look for us online at hrbreakfastclub.com.au. We’ve got a series of conversations with HR people and lawyers about current issues in the HR and employment field. If you’d like to ask some questions, suggest an idea, or perhaps offer yourself up as a talent for the series, we would love to hear from you.
Anna Johnstone2019-10-22T00:13:21+00:00October 21st, 2019|
Anna Johnstone2019-09-03T07:07:31+00:00September 3rd, 2019|